Plaintiff, Larry Huhn, as personal representative of the estate of Jaime L. Huhn, deceased, appeals by leave granted from the trial court order that granted a motion for change of *315 venue by defendant DMI, Inc. We reverse and remand.
Defendant Lenneman and his father farmed together in Ionia County. They purchased a grain wagon from defendant DMI, Inc. Plaintiffs decedent, Jaime Huhn, was defendant Lenneman’s niece.
While visiting at the farm, Jaime watched her uncle load corn from a grain wagon into a silo. Once the wagon was moved into the unloading position, Lenneman left Jaime alone at the grain wagon. When Lenneman returned a short time later, he could not find Jaime. He dug into the corn in the wagon and found Jaime near the bottom, covered with corn.
Unsuccessful efforts were made at the scene to revive Jaime. An ambulance was called, and she was taken to St. Lawrence Hospital in Lansing. She was transferred to Sparrow Hospital, also in Lansing, where she died the next day. Both hospitals are in Ingham County.
Plaintiff filed the complaint in the Ingham Circuit Court. Defendant DMI answered and asserted improper venue as an affirmative defense. Defendant Lenneman did not raise the venue issue as an affirmative defense in his answer.
DMI also filed a motion for change of venue to Ionia County. At the hearing on the motion, DMI argued that the cause of action arose in Ionia County, and that, regarding the matter of convenience, all of the witnesses except the Ingham County medical personnel lived in Ionia County.
Plaintiff asserted that, because the corporate defendant had its registered officer in Ingham County, and because the decedent was treated and died in Ingham County, venue was proper there. Moreover, plaintiff argued that defendant Lenne *316 man had waived the issue of venue by failing to raise it as an affirmative defense.
The trial court tersely granted the motion. The court’s entire response to the arguments of the parties was:
Well, I’m not certain that an affirmative defense reservation goes to the questions here.
The Court will grant the motion and approve an order accordingly.
This Court reviews a trial court’s decision to grant or deny a motion for a change of venue for clear error.
Vermilya v Carter Crompton Site Development Contractors, Inc,
As indicated by the trial court’s cited language, the basis for the trial court’s decision is unclear from the record. However, assuming the court found that venue was improperly laid in Ingham County, we hold that the court clearly erred. Part of plaintiffs cause of action arose in Ingham County, the situs of the decedent’s death and where her estate incurred damages.
In
Lorencz v Ford Motor Co,
*317
Under
Lorenez,
part of the cause of action arose in Ingham County. Painfully obvious is the fact that death is an essential element of a wrongful death claim.
Penner v Seaway Hosp,
Witt v C J Barrymore’s,
In its reasoning in Witt, this Court reemphasized that the plaintiff must establish the defendant’s legal duty to the plaintiff, breach of that duty, proximate causation between the breach and *318 the injury, and resultant damages, and concluded that the "[plaintiffs’ damages arose either in Ohio or Monroe County.” Witt, p 521.
In the instant case, plaintiff does not reside in Ingham County. However, Ingham County is the situs of the decedent’s death. Plaintiff alleges that all medical expenses, claimed as damages, were incurred in Ingham County. Lorencz and Witt mandate a conclusion that "all or part” of the cause of action arose in Ingham County.
Defendants’ reliance on
Johnson v Simongton,
1
First, Johnson was decided before the promulgation of Administrative Order No. 1990-6 and therefore is not binding. Second, Johnson relied on cases that determined when a wrongful death action accrues. Lorencz, on the other hand, turned on where the cause of action arose, and the Court concluded that when a plaintiff alleges proper facts, the plaintiff may "file suit in any one of these places because all or a part of the cause of action arose in any one of them.” Lorencz, p 375. The Court went on to note that the Legislature had rejected a bill that would have corresponded to the defendants’ position, and found that the plain wording of the statute needs no judicial interpretation. The court held, "[ujnder the statute, venue is proper where part or all of the cause of action arose, not merely at the situs of the injury.” Id., p 377. We are satisfied that Lorencz mandates the result we reach here. To the extent *319 that Johnson may be read as being in conflict, we decline to follow it.
If the trial court transferred the case for the convenience of the parties and witnesses, we hold that this was also clearly erroneous.
Vermilya, supra.
Defendants failed to make a persuasive showing of inconvenience so as to overcome the deference accorded to plaintiff’s choice of venue.
Duyck v Int'l Playtex, Inc,
Plaintiff is also correct in the assertion that the individual defendant, Lenneman, has waived any claim to a motion for change of venue by not filing such a motion before or at the time he filed an answer. MCR 2.221. His "concurrence” in defendant DMI’s motion was therefore illusory.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Notes
Judge Murphy was on the panel that decided Johnson. After that decision, the Supreme Court decided Lorencz and this Court decided Witt. Although neither Lorencz nor Witt involved a wrongful death action, Judge Murphy is persuaded that the Supreme Court’s analysis of the legislative history of the venue statute language regarding where "all or a part of the cause of action arose” is to be interpreted more broadly than that used by this Court in Johnson.