S055099, Opinion — Howell v. Willamette Urology, P. C.

124
Argued and submitted January 3, alternative writ o f mandamus dismissed
February 14, 2008
Launa HOWELL,
Rodney Howell, and Jacob L. Howell,
Co-Personal Representatives for
the Estate of Cody W. Howell,
Plaintiffs-Relators,
v.
WILLAMETTE UROLOGY, P.C.,
and David Elmgren, M.D.,
Defendants-Adverse Parties.
(CC 0701-01084; SC 8055099)
1 7 8 P3d 220
C.JS, Venue § 1 7 .
En Banc
Original proceeding in mandamus.*
On petition for a writ of mandamus from a n order o f Multnomah County
Circuit Court, Jean Kerr Maurer, J uclge.

Cite as 344 Or 124
Kathryn H. Clarke, Portland, argued the cause and filed
the brief for Plaintiffs-Relators. With her on the brief was
Tina Stupasky, Eugene.
Lindsey H. Hughes, of Keating Jones Hughes, P.C.,
Portland, argued the cause and filed the brieffor Defendants
Adverse Parties. With her on the brief was Peter 0. Tuenge.
GILLETTE, J.
The alternative writ of mandamus is dismissed.

126 Howell v. Willamette Urology, P.C.
GILLETTE, J.
This mandamus proceeding arises out of a dispute
over the proper venue for a wrongful death action. Venue for
a wrongful death action is governed by ORS 14.080, which
provides, in part:
"(1) All other actions [including actions for wrongful
death] shall be commenced in the county in which the
defendants, or one of them, reside at the commencement of
the action or in the county where the cause of actionrii arose.
A party resident of more than one county shall be deemed a
resident of each such county. If none of the defendants
reside in this state the action may be commenced in any
county.
"(2) For purposes of this section, a corporation incor
porated under the laws of this state, a limited partnership
or a foreign corporation authorized to do business in this
state shall be deemed to be a resident of any county where
the corporation or limited partnership conducts regular,
sustained business activity or has an office for the transac
tion of business * * *."
The parties' dispute in the case arises because the
negligence that allegedly caused decedent's death occurred in
one county, but decedent died in another county. The resolu
tion of that dispute lies in the proper interpretation of the
phrase, "in the county where the cause of action arose," in
subsection ( 1) of ORS 14.080. The trial court concluded that
the relevant county for purposes of that phrase was the
county where the negligence that caused decedent's death
allegedly occurred. As we shall explain, we also conclude that
the "county where the cause of action [for wrongful death]
arose" is the county in which the negligence that caused the
wrongful death occurred. Accordingly, we dismiss the alter
native writ of mandamus issued in this case.
There is no disagreement between the parties as to
the pertinent facts. The parties agree that the alleged neg
ligence that caused the death of the decedent occurred in
Marion County. The parties also agree that the defendants to
the wrongful death action, a physician and the professional
1 Or, as we presently call it, the ''claim."

Cite as 344 Or 1 24
corporation that employed him, reside only in Marion
County. Finally, the parties agree that the decedent died in
Multnomah County.
Plaintiffs initiated their claim by filing their cause of
action in Multnomah County. Defendants responded by mov
ing for a change of venue to Marion County on two grounds:
( 1) Marion County, not Multnomah County, is the proper
venue, and (2) Marion County is a more convenient county in
which to try the case than is Multnomah County. See ORS
14.l lO( l)(a) ( allowing trial court to change venue when the
action has not been commenced in proper county); ORS
14. l lO( l )(c) (allowing trial court to change venue when
another county would be more convenient place for trial for
witnesses and the parties). The trial court granted the
motion on the former ground (proper venue) and denied it on
the latter ground (convenience). Plaintiffs then petitioned
this court for an alternative writ of mandamus ordering the
trial court either to vacate its order changing venue to
Marion County or to show cause for not doing so. See Mack
Trucks, Inc. v. Taylor, 227 Or 376, 382, 362 P2d 364 ( 196 1)
(mandamus appropriate remedy for venue issues). This court
allowed the petition and issued the alternative writ of man
damus; the trial court declined to change its ruling. The mat
ter is now before us for decision.
Because both defendants reside in Marion County,
the only way that venue properly can be placed in Multnomah
County under ORS 14.080( 1) is if plaintiffs' "cause of action
arose" in Multnomah County. ORS 30.020 defines the rele
vant cause of action, wrongful death. It states, in part:
"When the death of a person is caused by the wrongful
act or omission of another, the personal representative of
the decedent * * * may maintain an action against the
wrongdoer, if the decedent might have maintained an
action, had the decedent lived, against the wrongdoer for an
injury done by the same act or omission."
Plaintiffs assert that what makes a wrongful death action
unique is the nature of the ultimate harm: death. And, they
reason, because ORS 30.020 is inoperative until the dece
dent's death, that death is the triggering event, and the place
where that death occurred therefore is the place where the

128 Howell v. Willamette Urology, P.C.
claim arose. Defendants respond that, properly read, ORS
14.080( 1) focuses not on the ultimate outcome of a wrong
doer's acts (here, death) but, instead, on the wrongful conduct
itself. Put slightly differently, defendants are arguing that
decedent's death, standing alone, is no occasion for judicial
relief. Instead, in defendants' view, it is the injurious act or
acts with which the statute is concerned, i.e. , the injurious act
or acts for which "the decedent might have maintained an
action, had the decedent lived," that place venue in Marion
County.2
The case is one of first impression, and involves stat
utory interpretation. Following our familiar paradigm, we
focus first on the wording of the pertinent statutes, consider
ing the statutory text in the context in which it is found. We
therefore turn to the text of ORS 14.080( 1) and, in particular,
to the statute's use of the word "arose" (which is, of course,
simply the past tense of the verb "arise").
We do not require the assistance of a dictionary here.
"Arise," as lawyers understand, means to come into being so
that a legal consequence-here, an action at law-may com
mence. It is, in that sense, the equivalent of an equally famil
iar concept, "accrue." Unfortunately, that understanding
does not complete our inquiry. The true struggle in this case
is over what it is that must arise . That is, plaintiffs assert
that what "arose" was decedent's death. Defendants, on the
other hand, assert that what must have arisen, in order for a
wrongful death action to be maintained, was injurious con
duct for which the decedent, had he lived, could have main
tained an action. Both readings of the statute are defensible
when the words in question are read in isolation; nothing in
the ordinary understanding of "arise" helps us select the cor
rect one.
Context, however, does help. First, the description of
a wrongful death action in ORS 30.020( 1) describes that
claim as one that "the decedent might have maintained * * * ,
had the decedent lived, against the wrongdoer for an inj ury
" The place where a claim arises may vary, depending on the specific claim at
issue. As our rephrasing of the defendants' argument demonstrates, our focus here
is on where a wrongful death action arises.

Cite as 344 Or 124 129
done by the same act or omission [that is, the alleged negli
gence or other wrong that is the basis of the wrongful death
action] ." In other words, the action is one that might have
been maintained by the decedent at a date earlier than the
date of decedent's death. Indeed, the purpose of a wrongful
death action is to remove death as a bar to bringing the claim,
not to make death the central event of the action. That read
ing of the statutory wording is confirmed by a later sentence
in the same section, which provides that such an action "shall
be commenced within three years after the injury causing the
death of the decedent is discovered or reasonably should have
been discovered by the decedent, by the personal representa
tive or by a person for whose benefit the [wrongful death]
action may be brought under this section * * * ." (Emphasis
added. ) The section goes on to provide that, with respect to
claims like the present one that are grounded in professional
negligence, "[i]n no case" shall the wrongful death action be
commenced later than " [t]hree years after the death of the
decedent." ORS 30. 020( 1)(a). (Emphasis added.)
Those contextual clues all point in the same direc
tion. First, they recognize that the claim may come into exis
tence (i.e. , may "arise") while the decedent is still alive, as
long as the decedent discovers or in the exercise of reasonable
care should discover the fact of the wrongful conduct and
resulting harm to the decedent. See also ORS 30.075 (recog
nizing that action may have been instituted by decedent
before he or she died, and providing that death does not abate
the action, which in such circumstances may be "continued
by the personal representative." And, if an action for harm
caused to the decedent could have been commenced before
the decedent died-as the statute recognizes that it could
then the place where the decedent ultimately might die
would be irrelevant: The decedent would not be dead yet, and
no wrongful death action concerning the wrongs that the
decedent had suffered would even be possible. It follows that
"the county where the cause of action arose" (emphasis
added) necessarily would be determined in wrongful death
cases by reference to the place where the decedent might
have brought the action while still alive, not by reference to
the place where the decedent died. And, because the author
ization to bring the wrongful death action places venue in the

130 Howell v . Willamette Urology, P.C.
county where the claim arose, it also follows that that county
has to be the place where the harm was done. That means
that, in this case, venue could not have been in Multnomah
County, because that county's only arguable relationship to
the case did not come into existence until decedent died
there.3 Plaintiffs arguments to the contrary are not well
taken.
We note, in passing, that cases discussing issues
analogous to the present one, although not on point, support
the foregoing conclusion. See, e.g. , State ex rel Kleinsorge et al
v. Reid, 221 Or 558, 560, 352 P2d 466 { 1960) (action against
public officers for personal injury sustained in swimming
pool at Oregon State College; action therefore "arose" under
ORS 14.050 in Benton C ounty, where college was located);
State ex rel Ind. Sup. Co. v. Goldstein et al, 2 2 1 Or 309, 3 1 1,
351 P2d 39 ( 1 960) (action against domestic corporation buyer
for price of goods sold and delivered; buyer could be sued
under ORS 15 .080 in county in which claim "arose," as well
as in county in which buyer had its principal place of
business).
We hold that, based on the wording of the statute in
question, venue for the purposes of a wrongful death action
lies either in the county where at least one of the defendants
resides or in the county in which the wrongful act or acts that
ultimately resulted in decedent's death occurred. In the pres
ent case, that means that the proper venue for plaintiffs'
cause of action was in Marion County, as the trial court ruled.
The alternative writ of mandamus is dismissed.
" Logic points in the same direction. The county where the injurious acts
occurred ordinarily will also be one in which many witnesses may be expected to
reside, and where at least one defendant may reside. On the other hand, the place
where the decedent died may be the result of happenstance. The l egislature thus
would have little reason to place venue in the county where the decedent happened
to die.