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ABATEMENT OF UNFILED CAUSE OF ACTION FOR PERSONAL INJURIES BY DEATH OF INJURED PARTY: SHELTON V. GREEN

Shelton v. Green, [Ms. 1160474, Nov. 9, 2017] __ So. 3d __ (Ala. 2017). This unanimous decision by Justice Sellers (Stuart, C.J., and Parker, Wise, and Bryan, JJ., concur) affirms the DeKalb’s Circuit Court’s judgment on the pleadings dismissing a personal injury action.

Shelton, as personal representative of Blansit’s estate, sued Green for personal injuries allegedly sustained when Blansit fell at Green’s residence. Ms. *2. It was undisputed that prior to the filing of the action, Blansit died of causes unrelated to her alleged fall at Green’s residence. Ibid.

In affirming, the Court held that

Like the prior versions of the survival statute, § 6-5-462 “did not change the common-law rule in Alabama that a cause of action in tort does not survive in favor of the personal representative of the deceased.” Continental Nat’l Indem. Co. v. Fields, 926 So. 2d 1033, 1037 (Ala. 2005). Thus, “[t]he general rule is that under Ala. Code 1975, § 6-5-462, an unfiled tort claim does not survive the death of the person with the claim.” Malcolm v. King, 686 So. 2d 231, 236 (Ala. 1996).

Ms. *6.

The plaintiff did not contest that the action abated with her decedent’s death, but rather contended that § 6-5-462 was unconstitutional. The Court rejected this contention, holding

It has, however, been settled for some time that the legislature has the authority to decide which actions and causes of action survive. Indeed, more than 100 years ago, this Court stated: “Whether our statutes should or should not provide for the survival of causes as well as of actions, is one conclusively for the Legislature and not for the court.”

Ms. *8-9, quoting Wynn v. Tallapoosa Cty. Bank, 118 Ala. 469, 491-92, 53 So. 228, 237 (1910).

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