Plant v. Decker, No. 85-1910

No. 85-1910 | Fla. Dist. Ct. App. | Apr 2, 1986

DANAHY, Judge.

The appellants seek review of an order dismissing their amended complaint without leave to amend. We reverse.

Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance & Welding, Inc., 365 So. 2d 425" court="Fla. Dist. Ct. App." date_filed="1978-12-15" href="https://app.midpage.ai/document/osborne-v-delta-maintenance--welding-inc-1716294?utm_source=webapp" opinion_id="1716294">365 So.2d 425 (Fla. 2d DCA 1978). Neither of those circumstances is present in this case. Although parents have no right of action for the wrongful death of a stillborn fetus,¹ they may pursue any personal claims they may have. Hernandez v. Garwood, 390 So. 2d 357" court="Fla." date_filed="1980-11-13" href="https://app.midpage.ai/document/hernandez-v-garwood-1902046?utm_source=webapp" opinion_id="1902046">390 So.2d 357 (Fla.1980). Much of the appellants’ amended complaint sounds in wrongful death and the trial judge was correct in dismissing it for this reason; however, there are allegations in the complaint that the mother suffered bodily injury with resulting damage. Under the circumstances, we believe the appellants should be given the opportunity to submit a second amended complaint omitting any reference to the elements of a cause of action for wrongful death and stating, if they can, causes of action for injury suffered by the mother.

Reversed and remanded.

GRIMES, A.C.J., and FRANK, J., concur.

1 . Stern v. Miller, 348 So. 2d 303" court="Fla." date_filed="1977-06-09" href="https://app.midpage.ai/document/stern-v-miller-1933311?utm_source=webapp" opinion_id="1933311">348 So.2d 303 (Fla.1977).