Smith v. Lusk

Summary

The Florida Second District Court of Appeal held that Florida's survival statute was not impliedly abolished by the Wrongful Death Act. Because the complaint alleged that the decedent's injuries and death resulted from unrelated causes, the personal representatives could alternatively pursue a survival claim for the decedent's personal injuries and pain and suffering, so dismissal of that count was reversed.

Holdings

1. Florida's wrongful-death statute did not impliedly abolish the survival statute. The survival statute remained applicable to preserve a decedent's personal-injury action when the alleged injury did not cause death.
2. The personal representatives properly pleaded inconsistent and alternative claims: a survival claim for pain and suffering from injuries not resulting in death and a wrongful-death claim for damages when the injury resulted in death.

Questions Presented

1. Whether Florida's wrongful-death statute impliedly abolished the survival statute for a personal-injury claim when the decedent's death was not caused by the alleged tortious injury.
2. Whether the personal representatives could plead in the alternative a survival claim for injuries not resulting in death and a wrongful-death claim asserting that the injury caused death.

Disposition

reversed_and_remanded