1. Appeal and Error--appealability--denial of change of venue
The denial of a motion to transfer venue is immediately appealable because it affects a
substantial right.
2. Venue--action against paramedics--actions at hospital in another county
A motion for change of venue to Rockingham County from Forsyth County was correctly
denied in an action which arose when plaintiff's stretcher fell several feet to the ground while
Rockingham County paramedics were unloading him at Baptist Hospital in Forsyth County.
Although defendants argued that the action was local in nature because it was against a county
and its public officers in the performance of an official duty, the acts and omissions constituting
the basis of the action occurred in Forsyth County.
Frazier & Frazier, L.L.P., by Torin L. Fury, for plaintiff-
appellee.
Womble Carlyle Sandridge & Rice, P.L.L.C., by James R. Morgan,
Jr. and Andrew L. Fitzgerald, for defendants-appellants.
McGEE, Judge.
John Carter and John Murphy, paramedics for Rockingham County
Emergency Medical Services, transported Charles Morris (plaintiff)
by ambulance from Eden Morehead Hospital in Rockingham County to
North Carolina Baptist Hospital (Baptist Hospital) in ForsythCounty. At Baptist Hospital, while the paramedics were removing
the stretcher carrying plaintiff, the head of the stretcher bounced
off a stair of the ambulance and hit the ground.
Plaintiff filed an action for negligence and medical
malpractice in Forsyth County. Plaintiff named as defendants the
two paramedics, Rockingham County, and Rockingham County Emergency
Medical Services (collectively defendants). Specifically,
plaintiff alleged that he suffered multiple cervical disc ruptures
and required surgery as a result of the stretcher being dropped by
defendant paramedics. Defendants filed a motion for change of
venue to Rockingham County. In an order entered 29 January 2004,
the trial court denied the motion. Defendants appeal.
[1] Although defendants' appeal is interlocutory, we have
previously held that "a denial of a motion to transfer venue
affects a substantial right." Hyde v. Anderson, 158 N.C. App.
307, 309, 580 S.E.2d 424, 425 (citing Thompson v. Norfolk S. Ry.
Co., 140 N.C. App. 115, 121-22, 535 S.E.2d 397, 401 (2000)), disc.
review denied, 357 N.C. 459, 585 S.E.2d 759 (2003). The trial
court's order is immediately appealable and properly before us.
[2]
An action "[a]gainst a public officer or person especially
appointed to execute his duties, for an act done by him by virtue
of his office; or against a person who by his command or in his aid
does anything touching the duties of such officer[,]" must be filed
"in the county where the cause, or some part thereof, arose[.]"
N.C. Gen. Stat. § 1-77 (2003).
In considering such actions, the
following two questions must be addressed: "(1) Is defendant a'public officer or person especially appointed to execute his
duties'? [and] (2) In what county did the cause of action in suit
arise?" Coats v. Hospital, 264 N.C. 332, 333, 141 S.E.2d 490, 491
(1965). In the present case, plaintiff and defendants only dispute
in which county the cause of action arose, and accordingly, in
which county venue is proper.
Defendants argue that the proper venue in this case is
Rockingham County. Defendants assert that because the action is
against a county and its public officers for the performance of an
official duty, the action is local in nature, and the proper venue
is the county in which the public officials perform their official
duties. See Powell v. Housing Authority, 251 N.C. 812, 816, 112
S.E.2d 386, 389 (1960) ("[A]ll public officers, when sued about
their official acts, should be sued in the county where they
transact their official business."). Defendants emphasize that the
purpose underlying N.C.G.S. § 1-77 "is to avoid requiring public
officers to 'forsake their civic duties and attend the courts of a
distant forum.'" Wells v. Cumberland Cty. Hosp. Sys., Inc., 150
N.C. App. 584, 587, 564 S.E.2d 74, 76 (2002) (quoting Coats, 264
N.C. at 333, 141 S.E.2d at 491). Defendants contend the paramedics
were acting in their official capacity as emergency medical
technicians for Rockingham County Emergency Medical Services, which
is a Rockingham County agency. Defendants thus argue that
Rockingham County is the only proper venue because all of the
parties are citizens or entities residing solely in Rockingham
County. However, in the cases cited by defendants, the cause of action
arose and occurred within the county that was being sued. By
contrast, in the present case, the cause of action arose not in the
county being sued, but in Forsyth County. Our Supreme Court has
held that venue is proper outside of the county sued when, as is
the case here, the cause of action arose in another county. Murphy
v. High Point, 218 N.C. 597, 12 S.E.2d 1 (1940).
(See footnote 1)
In Murphy,
landowners in Davidson County sued the City of High Point, a
Guilford County municipality that was operating a sewage disposal
plant in Davidson County. Id. at 598, 12 S.E.2d at 1. The
landowners filed their action in Davidson County because the City
of High Point was allowing raw sewage to pass into a Davidson
County stream. Id. Defendants argue that Murphy is factually and
legally distinguishable from the present case. First, defendants
argue that rather than involving a personal injury, as in the
present case, Murphy involved real property in Davidson County, and
the venue was properly in the county where the land affected was
situated. Second, defendants argue that in Murphy, venue was in
Davidson County because the City of High Point had a significant
presence in Davidson County, as it was operating the sewage
disposal plant there. Whereas, in the present case, defendantsargue that Rockingham County does not have any buildings or other
significant connection to Forsyth County.
Defendants' arguments, however, are not supported by our
Supreme Court's rationale in Murphy. The Court noted that an
officer's acts are no longer confined to the county in which he is
an officer and that official conduct of public officers are "not
necessarily inherently local." Murphy, 218 N.C. at 599, 12 S.E.2d
at 2 (internal quotations omitted). The Court further stated:
When public utilities are constructed and
maintained outside the corporate limits of a
city such plant must be operated and
controlled. The agents and officials of the
city who operate these utilities are acting
for and in behalf of the city. Their acts are
the acts of the municipality. When their
conduct in respect thereto gives rise to a
cause of action the cause of action arises
where the act is committed.
Id. at 600, 12 S.E.2d at 3. In the case before us, defendants were
fulfilling their duty under N.C. Gen. Stat. § 147-517 (2003) that
"[e]ach county shall ensure that emergency medical services are
provided to its citizens" by transporting plaintiff to a hospital
outside Rockingham County. The paramedics, as officers of
Rockingham County, were carrying out official duties, and were
acting on behalf of Rockingham County. The paramedics' official
duties brought them to Forsyth County, and their acts or omissions
gave rise to a cause of action in Forsyth County.
"[A] cause of action may be said to accrue, within the meaning
of a statute fixing venue of actions, when it comes into existence
as an enforceable claim, that is, when the right to sue becomes
vested." Smith v. State, 289 N.C. 303, 333, 222 S.E.2d 412, 432(1976) (quoting 77 Am. Jur. 2d Venue § 37 (1975)). In a negligence
action, the right to sue is vested when a person fails "to exercise
that degree of care which a reasonable and prudent [person] would
exercise under similar conditions and which proximately causes
injury or damage to another." Williams v. Trust Co., 292 N.C. 416,
422, 233 S.E.2d 589, 593 (1977). In the present case, any
negligence on the part of defendants was not actionable until
plaintiff was injured. Plaintiff alleges that he was injured when
the paramedics failed to properly remove the stretcher, allowing
"the head of the stretcher containing [plaintiff] to bounce off the
center step of the ambulance and slam to the ground some three to
four feet below." Thus, the injury occurred and the cause of
action arose in Forsyth County.
Moreover, "'[a] broad, general rule . . . is that the cause of
action arises in the county where the acts or omissions
constituting the basis of the action occurred.'" Coats, 264 N.C.
at 334, 141 S.E.2d at 492 (quoting Annot., Venue of actions or
proceedings against public officers, 48 A.L.R. 2d 423, 432).
Defendants argue that Rockingham County is the proper venue because
plaintiff's complaint demonstrates that most of the acts or
omissions of alleged negligence occurred in Rockingham County. We
disagree with defendants' reading of the complaint. Plaintiff
makes five specific allegations concerning how defendants breached
their duty of care to plaintiff. Only one of these allegations
involves acts or omissions that occurred in Rockingham County,
that defendants failed to inspect and maintain the ambulance. Theother alleged acts and omissions, which form the basis of
plaintiff's negligence claim, occurred in Forsyth County.
Plaintiff asserted in his complaint that defendants breached their
duty of care when they:
a. failed to exercise ordinary care in the
removal of a stretcher from an ambulance;
b. failed to release the handle at the foot
of the stretcher or otherwise failed to
lock the undercarriage in a down position
thereby allowing the stretcher to safely
position outside of the ambulance;
. . . .
d. failed to otherwise properly secure the
stretcher in a position so that it would
not fall from the ambulance;
e. failed to secure in an upright position
the center step so that the stretcher
would clear the step on removal[.]
The cause of action arose in Forsyth County because "the acts [and]
omissions constituting the basis of the action occurred" in Forsyth
County. See Coats, 264 N.C. at 334, 141 S.E.2d at 492.
For the foregoing reasons, we affirm the trial court's denial
of defendants' motion for change of venue.
Affirmed.
Judges WYNN and TYSON concur.
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