Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 9, 2008
DIMMITT & OWENS FINANCIAL, INC.,
and JMM NOTEHOLDER
REPRESENTATIVE, L.L.C.,
Plaintiffs-Appellants,
v No. 134087
DELOITTE & TOUCHE (ISC), L.L.C.,
DELOITTE SERVICES LIMITED
PARTNERSHIP, a/k/a DELOITTE &
TOUCHE, L.L.P., and PHILIP JENNINGS,
Defendants-Appellees,
and
JANE DOE and JOHN DOE,
Defendants.
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
In this accounting malpractice action, we consider where an “original
injury” occurs for purposes of determining venue under MCL 600.1629(1)(a) and
(b). We conclude that the location of the original injury is where the first actual
injury occurs that results from an act or omission of another, not where a plaintiff
contends that it first relied on the act or omission that caused the injury. Reliance
creates only a potential injury, which is insufficient to state a negligence cause of
action and, consequently, cannot constitute the original injury necessary to
establish venue. Accordingly, we affirm the result the Court of Appeals reached,
but reject its reasoning.
Plaintiffs Dimmitt & Owens Financial, Inc., and JMM Noteholder
Representative, L.L.C., sued defendants Deloitte & Touche (ISC), L.L.C., Deloitte
Services Limited Partnership, also known as Deloitte & Touche, L.L.P., and Philip
Jennings (collectively, defendants) in the Wayne Circuit Court, alleging that
defendants had committed malpractice when providing auditing services to
Dimmitt. Defendants moved for a change of venue, contending that they had
performed their auditing services at Dimmitt’s offices in Oakland County. They
contended that Oakland County was the “county in which the original injury
occurred.” MCL 600.1629(1)(a). Plaintiffs responded by arguing that defendants
had generated the reports on which plaintiffs relied in defendants’ Wayne County
office. The trial court denied defendants’ motion.
The Court of Appeals reversed, holding that the original injury occurred
when plaintiffs first relied on defendants’ allegedly faulty audit reports to make
investment decisions at Dimmitt’s place of business in Oakland County.1 The
1
Dimmitt & Owens Financial, Inc, v Deloitte & Touche (ISC), LLC, 274
Mich App 470, 480; 735 NW2d 288 (2007).
2
Court of Appeals concluded that venue was proper in Oakland County.2 The
Court of Appeals erred as a matter of law by focusing on where plaintiffs relied on
defendants’ work product because this reliance only created a potential injury. We
hold that, for purposes of determining where venue is properly laid, the location of
the original injury is where the first actual injury occurred that resulted from an act
or omission of the accountant defendants. Here, the first injury plaintiffs allegedly
suffered occurred when Dimmitt could not satisfy its financial obligations and was
forced to liquidate its assets. Because both plaintiffs’ principal places of business
are in Oakland County, venue is proper in Oakland County. Therefore, although
the reasoning of the Court of Appeals was erroneous, we affirm the result on other
grounds.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs alleged that Dimmitt is a “traditional factor” that purchases
accounts receivable at a discount from its customers. Factoring is a financial
transaction that occurs when a business is owed money by a debtor. This business
sells one or more of its invoices at a discount to a third party, the factor, to obtain
cash. The debtor then directly pays the factor the full value of the invoice. The
factor, however, bears the risk that the debtor will not pay the invoice.3
2
Id.
3
See Black’s Law Dictionary (7th ed).
3
Dimmitt received financial backing for its factoring business through
unsecured promissory notes from numerous investors.4 By late 2002, it held
approximately $16 million in debt on these promissory notes. These unsecured
promissory notes were subordinate in interest to Dimmitt’s obligation to Standard
Federal Bank, which had provided Dimmitt with a line of credit to fund its
factoring operations. Because the bank required Dimmitt to provide interim
review and year-end financial statements, Dimmitt retained defendants to conduct
financial audits and generate reports. Dimmitt would then distribute copies of the
interim review and year-end financial statements to the bank and Dimmitt’s
investors.
Plaintiffs alleged that by 2003 Dimmitt was in default on its repayment
obligation to the bank and could not meet its financial obligations to its investors.
Dimmitt notified the bank of its impending default and presented a proposal for
reorganization to its investors, which both the bank and the investors accepted.
Dimmitt also entered into a forbearance agreement with the bank. Shortly
thereafter, Dimmitt determined that it lacked the financial capacity to comply with
either the forbearance agreement or the reorganization plan, and it elected to
liquidate its assets.
4
Plaintiff JMM Noteholder Representative, LLC, is composed of and
represents the interests of these investors.
4
Plaintiffs alleged that the development of Dimmitt’s proposal for
reorganization and its negotiations with the bank were premised on the true value
of Dimmitt’s assets, as set forth in the financial statements audited by defendants.
Subsequently, however, Dimmitt discovered that a significant portion of its assets
had been vastly overstated in the financial statements audited and reviewed by
defendants. Moreover, Dimmitt discovered accounting errors and omissions. In
particular, the statements included accounts receivable that had been converted to
“purchase discounts” that should have been considered debts rather than assets.
Defendants had also failed to accurately assess which of Dimmitt’s accounts
receivable were actually collectible. Defendants had designated some accounts as
assets that were actually uncollectible.
Plaintiffs filed a complaint in the Wayne Circuit Court, alleging accounting
malpractice. They also alleged negligence, fraud/intentional misrepresentation,
constructive fraud, breach of contract, and breach of fiduciary duty and sought a
declaratory judgment. In lieu of answering plaintiffs’ complaint, defendants
sought a change of venue. Defendants contended that they had performed the
accounting work relevant to plaintiffs’ complaint at Dimmitt’s offices in Oakland
County. Defendants argued that MCL 600.1629(1)(a) required a transfer of venue
from Wayne County to Oakland County because Oakland County was “the county
in which the original injury occurred.” Plaintiffs responded by asserting that the
annual engagement letters, meetings and audit staffing decisions, letters seeking
documents and spreadsheets in preparation for conducting an audit, document
5
review and analysis, compilation of a draft report, and issuance of the final
financial statements had all originated from or occurred at defendants’
headquarters in Wayne County. The trial court denied defendants’ motion to
change venue.
On defendants’ application for leave to appeal, the Court of Appeals
reversed, holding that the original injury occurred when plaintiffs first relied on
the information that defendants had negligently provided.5 It held that
“defendants’ alleged negligence in collecting and analyzing data and information
presented only the potential for future injury, but plaintiffs suffered the original
injury when they relied on defendants’ allegedly faulty information in making
investment decisions.”6 Those decisions occurred at Dimmitt’s place of business.
The Court thus held that venue was proper in Oakland County.7
Plaintiffs sought leave to appeal in this Court. We ordered oral argument
on whether to grant plaintiffs’ application or take other peremptory action.8
5
Dimmitt, 274 Mich App at 480.
6
Id.
7
Id.
8
Dimmitt & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 480
Mich 899 (2007).
6
II. STANDARD OF REVIEW
Venue is controlled by statute in Michigan.9 The Legislature is properly
imbued with the power to establish the venue for causes of action.10 This Court
reviews de novo questions of statutory interpretation.11 In doing so, our primary
obligation is to discern legislative intent as reflected in the plain language of the
statute.12 When the language of a statute is unambiguous, the Legislature’s intent
is clear, and judicial construction is neither necessary nor permitted.13
We review a trial court’s ruling in response to a motion to change venue
under the “clearly erroneous” standard.14 Clear error exists when the reviewing
court is left with a definite and firm conviction that a mistake has been made.15
III. LEGAL ANALYSIS
MCL 600.1629(1) provides, in relevant part:
Subject to subsection (2), in an action based on tort or
another legal theory seeking damages for personal injury,
property damage, or wrongful death, all of the following
apply:
9
Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 309; 596 NW2d 591
(1999) (opinion by Kelly, J.); MCL 600.1629(1).
10
Coleman v Gurwin, 443 Mich 59, 62; 503 NW2d 435 (1993).
11
Lash v Traverse City, 479 Mich 180, 186; 735 NW2d 628 (2007).
12
Id. at 187.
13
Id.
14
Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000).
15
Id.
7
(a) The county in which the original injury occurred
and in which either of the following applies is a county in
which to file and try the action:
(i) The defendant resides, has a place of business, or
conducts business in that county.
(ii) The corporate registered office of a defendant is
located in that county.
(b) If a county does not satisfy the criteria under
subdivision (a), the county in which the original injury
occurred and in which either of the following applies is a
county in which to file and try the action:
(i) The plaintiff resides, has a place of business, or
conducts business in that county.
(ii) The corporate registered office of a plaintiff is
located in that county.
Before the statute was amended by 1995 PA 161 and 1995 PA 249, effective
March 28, 1996, subsections 1(a) and (b) referred to a “county in which all or a
part of the cause of action arose,” rather than “the county in which the original
injury occurred.”
In Lorencz v Ford Motor Co, 439 Mich 370, 377; 483 NW2d 844 (1992),
this Court interpreted the preamendment language to mean that “venue is proper
where part or all of the cause of action arose, not merely at the situs of the injury.”
We explained:
It is clear that a breach of duty can occur in a different venue
than the injury in a tort case. For example, in a products liability
action, the product can be designed in one county, manufactured in
another, and the injury may occur in yet a third. A plaintiff, alleging
proper facts, can file suit in any one of these places because all or a
part of the cause of action arose in any one of them. Under the plain
8
language of MCL 600.1629(1)(a); MSA 27A.1629(1)(a), venue
would be properly laid in any one of them.[16]
This Court refined Lorencz in Gross v Gen Motors Corp, 448 Mich 147;
528 NW2d 707 (1995). In that case, the plaintiff argued that because damages are
an element of a tort action, they establish a place or places where a tort action
arises. We stated:
Under MCL 600.1629; MSA 27A.1629, venue in a tort action
is proper only at the situs of an injury, or in the place or places
where the breach of a legal duty occurs that subsequently causes a
person to suffer damages. Tangential damages that occur other than
at such places are irrelevant to venue determination.[17]
In Coleman v Gurwin, 443 Mich 59; 503 NW2d 435 (1993), this Court
analyzed the preamendment version of the statute in the context of a legal
malpractice action. In that case, the defendant lawyer had allegedly given
erroneous advice regarding a potential wrongful discharge claim and the
applicable statute of limitations. This information induced the plaintiff to forgo
filing suit until after the expiration of the period of limitations. Because the
underlying suit arose in Wayne County and the defendant conducted business
there, the trial court held that venue was properly laid in Wayne County. The
Court of Appeals agreed. We reversed, stating:
Although evidence of an underlying suit may be necessary to
prove proximate cause and damages, because legal malpractice is a
separate cause of action, venue is determined by the location of the
16
Lorencz, 439 Mich at 375.
17
Gross, 448 Mich at 165.
9
primary suit, i.e., where the alleged legal negligence occurred. The
venue of a “suit within a suit” is not a part of the legal malpractice
cause of action, therefore, it may not direct the venue of the legal
malpractice action. A legal malpractice action arises solely in the
county where the allegedly negligent legal representation occurred.
The Court of Appeals, therefore, erred by holding that the venue of
the “suit within a suit” controls the venue of a legal malpractice
claim.[18]
We continued:
Not one of the parts of the cause of action for legal
malpractice occurred in Wayne County; the plaintiff retained the
attorney in Oakland County, the advice was given in Oakland
County and received in Washtenaw County, and the statute of
limitations ran while the plaintiff lived in Washtenaw County.
Plaintiff’s action did not arise in whole or in part in Wayne County
because defendant’s alleged malpractice occurred outside of the
county. Although the underlying litigation would have occurred in
Wayne County, the actual suit at issue—the legal malpractice
between plaintiff and defendant—is premised solely on allegedly
negligent advice given on soil beyond the boundaries of Wayne
County.[19]
In Bass v Combs, 238 Mich App 16; 604 NW2d 727 (1999), the Court of
Appeals analyzed the proper venue for a legal malpractice action under the
current, amended version of the statute. In that case, the plaintiff filed a legal
malpractice claim against the defendants when her underlying wrongful discharge
case was dismissed with prejudice because the defendants had failed to respond to
discovery requests and had failed to instruct the plaintiff to appear at a deposition.
The plaintiff filed her legal malpractice claim in Wayne County, but the trial court
18
Coleman, 443 Mich at 66.
19
Id. at 66-67.
10
transferred the case to Oakland County because the parties had initiated their
attorney-client relationship in Oakland County.
The plaintiff appealed the transfer of venue of her legal malpractice claim.20
The Court of Appeals relied on the reasoning of Coleman, although Coleman had
interpreted the preamendment version of the statute.21 The Court of Appeals held
that Wayne County was the proper venue for the malpractice action because the
plaintiff had set forth several instances of “legal negligence” that occurred in
Wayne County, namely, the defendants’ failures to comply with court orders and
otherwise properly handle the plaintiff’s wrongful discharge case.22
We overrule Bass to the extent that it held that venue was proper in the
county where the negligent omissions of the defendant occurred rather than the
county in which the original injury suffered by the plaintiff occurred.23 The
amendment of MCL 600.1629(1)(a) and (b) changed the law of venue in tort cases
and considerably limited the county in which a cause of action can be brought.
The Legislature chose in the amended statute to adopt language that clearly and
20
The Court of Appeals consolidated that appeal with her appeal of the trial
court’s dismissal of her underlying claim.
21
Bass, 238 Mich App at 20-21.
22
Id. at 21-22.
23
Although the Court of Appeals improperly applied the reasoning of
Coleman to the decision in Bass, it did reach the right result. The original injury
in that case was the dismissal of the underlying suit that occurred in Wayne
County. Therefore, venue was properly laid in Wayne County.
11
unambiguously limits venue to the situs of the original injury when either the
defendant or the plaintiff resides, does business, or has a corporate office there.
The phrase “original injury” is not defined by statute, and this Court has not
addressed it previously. The Court of Appeals analyzed what constitutes an
original injury in Taha v Basha Diagnostics, PC, 275 Mich App 76, 78; 737
NW2d 844 (2007), holding that “to determine venue in tort actions, it is necessary
to identify the actual place of occurrence of the damage or injury that gives rise to
the plaintiff’s cause of action.”
While Taha involved a medical malpractice claim, its reasoning applies
equally to the present case. In Taha, the plaintiff alleged that he fell and injured
his wrist. A doctor treated the plaintiff for his wrist injury in Wayne County. An
x-ray of the plaintiff’s wrist was taken in Wayne County, but it was sent to the
defendants in Oakland County to be read. The defendants allegedly misread the x-
ray and communicated their findings to the doctor, who began treating the plaintiff
in Wayne County based on the defendants’ allegedly negligent reading of the x-
ray. The Court of Appeals explained that “[i]n the medical-malpractice context, it
is clear that the plaintiff’s injury is not merely the defendant’s alleged failure to
meet the recognized standard of care. Instead, the plaintiff’s injury is the
corporeal harm that results from the defendant’s alleged failure to meet the
recognized standard of care.”24 Therefore, the Court of Appeals held that venue
24
Taha, 275 Mich App at 79 (emphasis in original).
12
was proper in Wayne County—the county where the plaintiff suffered actual
physical harm:
The damage about which plaintiff complains in the case at bar
is not the alleged misreading of the x-ray itself, but is the corporeal
injury that plaintiff sustained as a result of defendants’ alleged
negligence. Contrary to defendants’ contention, the mere
misreading of the x-ray itself resulted in no actual harm, and
therefore did not constitute an “injury” for medical-malpractice
purposes. Similarly, the x-ray misreading, without more, did not
become an “injury” within the meaning of MCL 600.1629 until it
resulted in an actual injury to the plaintiff.[25]
Taha highlights the importance of separating a breach of the standard of
care from the injury caused by the breach. Many negligent acts or omissions may
occur that for whatever reason do not result in an actual injury. This Court has
made clear, however, that a claim for negligence does not exist without actual
injury.26 Because MCL 600.1629(1)(a) and (b), as amended, refer to the county
25
Id. at 79-80 (emphasis in original). The dissent’s attempt to distinguish
Taha fails. Justice Kelly notes that “the original injury in Taha was the ineffective
treatment devised in reliance on the negligent radiological reading.” Post at 5
(emphasis added). We agree. The plaintiff suffered an injury because he had been
treated ineffectively, i.e., he was injured because he did not receive the treatment
of his wrist that he needed for it to heal properly. The treatment plan created in
reliance on the negligent reading of the x-ray created only a potential injury. Once
that treatment plan proved ineffective, the plaintiff suffered an actual injury.
26
Henry v Dow Chem Co, 473 Mich 63, 74-75; 701 NW2d 684 (2005).
The dissent contends that Henry is inapposite because it involved the substantive
merits of a negligence claim rather than the “matters of convenience” involved in
a determination of proper venue. Post at 2-3. Justice Kelly seems to advocate a
different definition of “injury” within the context of the venue statute. The text of
the venue statute does not, however, suggest or support such a distinction. MCL
600.1629(1)(a) and (b) refer to the county where the “original injury” occurred. In
Henry, this Court defined “injury” as an actual injury rather than a potential injury.
(continued…)
13
where the “original injury” occurred, we hold that courts must look to the first
injury resulting from an act or omission of a defendant to determine where venue
is proper. It is the original injury, not the original breach of the standard of care,
that establishes venue under MCL 600.1629(1)(a) and (b).
In this case, plaintiffs alleged that defendants had failed to comply with the
standard of care for accounting professionals by negligently conducting audits and
preparing financial reports. They claimed that this breach of the standard of care
constituted the original injury, which occurred when defendants signed off on and
mailed their faulty reports. As illustrated in Taha, this analysis fails. A breach of
the standard of care does not constitute an injury.
Plaintiffs also did not suffer their original injury when they relied on
defendants’ reports. The Court of Appeals held that “plaintiffs suffered the
original injury when they relied on defendants’ allegedly faulty information in
making investment decisions.”27 We have explained, however, that “Michigan
law requires more than a merely speculative injury. . . . It is a present injury, not
fear of an injury in the future, that gives rise to a cause of action under negligence
theory.”28 At the time of plaintiffs’ reliance, plaintiffs suffered only a potential
injury, namely, that their investment decisions based on defendants’ negligence
(…continued)
No principled basis exists to alter the definition of “injury” because the text of the
venue statute does not suggest any different meaning than that used in Henry.
27
Dimmitt, 274 Mich App at 480 (emphasis added).
28
Henry, 473 Mich at 72-73 (emphasis in original).
14
might turn out to be poor ones that might injure plaintiffs. The original injury did
not occur until plaintiffs allegedly suffered an actual injury as a result of their
reliance on defendants’ services. The first actual injury plaintiffs allegedly
suffered occurred when Dimmitt could not satisfy its financial obligations and was
forced to liquidate its assets.29 Both plaintiffs’ principal places of business are in
Oakland County, and, therefore, the alleged original injury was suffered in
Oakland County. Accordingly, venue was properly laid in Oakland County.
IV. CONCLUSION
The Court of Appeals incorrectly focused its inquiry on where plaintiffs
relied on defendants’ work product, rather than where plaintiffs suffered the
original, actual injury. Nevertheless, it reached the correct result in concluding
that venue was proper in Oakland County. Both plaintiffs’ alleged injuries
occurred when Dimmitt was unable to satisfy its financial obligations and was
forced to liquidate its assets. That injury occurred in Oakland County, the location
of both plaintiffs’ principal places of business.
For these reasons, we affirm the result reached by the Court of Appeals and
29
While in this case a significant amount of time elapsed between
plaintiffs’ reliance and the injury, there may be situations in which reliance could
produce an immediate injury that would constitute an original injury. We reiterate
that the only relevant question for venue purposes is when a plaintiff suffered an
actual injury.
15
remand this case to the Wayne Circuit Court for entry of an order changing venue
to the Oakland Circuit Court.
Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
16
STATE OF MICHIGAN
SUPREME COURT
DIMMITT & OWENS FINANCIAL, INC.,
and JMM NOTEHOLDER
REPRESENTATIVE, L.L.C.,
Plaintiffs-Appellants,
v No. 134087
DELOITTE & TOUCHE (ISC), L.L.C.,
DELOITTE SERVICES LIMITED
PARTNERSHIP, also known as DELOITTE
& TOUCHE, L.L.P., and PHILIP
JENNINGS,
Defendant-Appellees,
and
JANE DOE and JOHN DOE,
Defendants.
KELLY, J. (concurring in part and dissenting in part).
I agree that “original injury” as used in the tort venue statute1 is not
synonymous with the breach of a duty and that venue here is proper in Oakland
County. But I disagree with the majority’s conclusion that the “original injury”
for venue purposes occurred when plaintiff Dimmitt & Owens Financial, Inc.
1
MCL 600.1629(1)(a) and (b).
(Dimmitt) became unable to meet its financial obligations and elected to liquidate
its assets.
The majority focuses on when Dimmitt’s damages emanating from the
original injury became manifest. But I find that the original injury occurred
earlier, when Dimmitt made investment decisions in reliance on the allegedly
negligent audit report of defendant Deloitte & Touche (ISC), L.L.C. The Court of
Appeals reached a substantially similar conclusion when it stated that “plaintiffs
suffered the original injury when they relied on defendants’ allegedly faulty
information in making investment decisions. The alleged damages flowed from
this original injury, which occurred at Dimmitt’s place of business in Oakland
County.”2 I would affirm the Court of Appeals conclusion.
The majority relies heavily on Henry v Dow Chem Co3 to redefine the
phrase “original injury” as “actual,” rather than “potential,” injury.4 I have several
objections to this reliance on Henry.
First, I fail to see how Henry is relevant to determining venue. There, a
majority of the Court refused to recognize a cause of action for medical
monitoring. But venue is “a matter of convenience,”5 not a question of whether a
2
Dimmitt & Owens Financial, Inc, v Deloitte & Touche (ISC), LLC, 274
Mich App 470, 480; 735 NW2d 288 (2007).
3
Henry v Dow Chem Co, 473 Mich 63, 72-73; 701 NW2d 684 (2005).
4
Ante at 14-15.
5
Peplinski v Employment Security Comm, 359 Mich 665, 668; 103 NW2d
454 (1960).
2
plaintiff has stated a legally cognizable cause of action.6 Were venue tied to the
legal sufficiency of a complaint, no plaintiff would ever have a forum in which to
make “a good-faith argument for the extension, modification, or reversal of
existing law,” which is something Michigan’s court rules expressly allow.7
Second, the majority in Henry effectively equated actual injury with
manifest injury.8 In his dissent in Henry, Justice Cavanagh explained that injuries
to legally protected interests are actual injuries, even when their manifestation is
latent.9 I joined the dissent in Henry and continue to disagree with the majority’s
definition of injury in that case to exclude latent injuries.
Third, the majority in Henry noted that this Court had not “finely delineated
the distinction between an ‘injury’ and the ‘damages’ flowing therefrom . . . .”10
The majority in Henry then immediately conflated the two.11 But the words
“injury” and “damages” appear in separate elements of the cause of action for
6
In order to avoid the plaintiffs’ showing financial injury for the cost of
medical monitoring, the majority in Henry unjustifiably attempted to limit
Michigan negligence law to cases showing “present physical injury.” Henry, 473
Mich at 75, 78. If Michigan law were so limited, the instant claim for accounting
malpractice would not be cognizable in Michigan because plaintiffs have no basis
to allege present physical injury.
7
MCR 2.114(D)(2).
8
Henry, 473 Mich at 84, 100-101.
9
Id. at 110 (Cavanagh, J., dissenting), citing cases from other jurisdictions.
10
Id. at 75.
11
Id.
3
negligence.12 And “injury” in the first instance is a “violation of another’s legal
right . . . .”13 Damages may eventually emanate from the violation.
In this case, the original injury to plaintiff occurred when it made business
decisions in reliance on an allegedly negligent audit. Plaintiff, a business entity,
had a right to expect that the audit results were correct and to make its business
decisions on the basis of those results. Plaintiff was initially injured when it
exercised this right. Damages followed.
This conclusion is in line with the Court of Appeals decision in Taha v
Basha Diagnostics, PC,14 which the majority quotes with approval.15 The plaintiff
in Taha was treated for a broken wrist in Wayne County. In beginning the
treatment, plaintiff’s physician relied on x-rays that the Oakland County
defendants misread. The Court of Appeals held that “the location of plaintiff’s
12
The elements of a cause of action for negligence are:
1. The existence of a legal duty by defendant toward plaintiff;
2. the breach of such duty;
3. the proximate causal relation between the breach of such
duty and an injury to the plaintiff; and
4. the plaintiff must have suffered damages. [Lorencz v Ford Motor
Co, 439 Mich 370, 375; 483 NW2d 844 (1992) (citations omitted; emphasis
added).]
13
Black’s Law Dictionary (7th ed).
14
Taha v Basha Diagnostics, PC, 275 Mich App 76; 737 NW2d 844
(2007).
15
Ante at 12-13.
4
treatment by [his doctor] following defendants’ services was determinative of
venue in this case.”16 The “actual harm” occurred “at [his doctor’s] office in
Wayne County.”17 While the Court of Appeals alternatively referred to plaintiff’s
“corporeal injury,”18 it never identified that injury separately from the treatment of
plaintiff’s pre-existent broken wrist.
The plaintiff in Taha was entitled to receive proper medical treatment based
on a correct reading of his x-ray. He was injured when an improper treatment plan
was devised on the basis of an incorrect radiological reading. Thus, the original
injury in Taha was the ineffective treatment devised in reliance on the negligent
radiological reading. As a result of that injury, the plaintiff claimed some
unspecified damage to his already broken wrist.
Acts done in reliance on someone’s negligence may not always be at stake
in tort venue cases. Additionally, the distinction between injury and damages may
not always be relevant in determining the proper venue. In this case, both the
original injury and the damages following from that injury occurred in Oakland
County, where both Dimmitt and its investors’ organization, plaintiff JMM
Noteholder Representative, L.L.C., had their headquarters. Nevertheless, it is
important not to conflate injury and damages, because the tort venue statute speaks
of “original injury,” and damages follow only after that original injury has
16
Taha, 275 Mich App at 80.
17
Id.
18
Id. at 79.
5
occurred. Under the current tort venue statute, when and where damages manifest
themselves is not important for venue purposes.
I would affirm the Court of Appeals decision.
Marilyn Kelly
CAVANAGH, J. I would deny leave to appeal.
Michael F. Cavanagh
6