Georgia Wrongful Death – Overview
This site was created as a source of public information on the law of wrongful death in Georgia. The core principles of Georgia wrongful death law are covered. The information provided here is no substitute for hiring legal counsel. Evidence in wrongful death cases disappears very rapidly after the incident that causes injury and death, and competent legal counsel working for your benefit is the only way of securing and preserving your rights.
What You Need to Know about Georgia Wrongful Death Law
The following topics and questions are covered in this website:
Claims – How do you know if you have a claim?
Who can bring the claim?
What claims can be brought?
Statutes of Limitation – How long do you have to file a wrongful death case in Georgia?
Evidence – What evidence is critical in proving liability?
Damages – What can a family expect to recover for the loss of a loved one?
The Process – How long does it take for a case to resolve, and will you need to sue?
How do you know if you have a Wrongful Death Claim in Georgia?
Wrongful death in Georgia is a cause of action that was created by the legislature, and so you may sometimes hear it referred to as a “statutory cause of action” or a claim that is governed by a “statutory scheme.” In a nutshell, a claim for wrongful death may exist when there is (1) a death caused by the (2) negligent, reckless, intentional, or criminal acts or another person or business. Negligence is the easiest type of conduct to prove on the part of the wrongdoer (also called the “tortfeasor” in law), and it essentially means that the wrongdoer failed to exercise reasonable care not to harm the deceased person or that the wrongdoer failed to do something for the safety of the deceased person that he had a duty to do. While a trial is necessary to give a final determination of negligence and ultimate liability of the wrongdoer, attorneys on both sides of a wrongful death case try to anticipate what a jury would find if the case went to trial, and settlements often occur before a trial takes place.
Who can bring a Georgia Wrongful Death Claim?
Since wrongful death in Georgia is governed by statute, there is a strict statutory order with respect to who can bring the claim for the value of the deceased person’s life. If the deceased had a spouse, then the surviving spouse holds the claim, and he or she is the ONLY person who can bring it. In the case of the surviving spouse, if the deceased also had children, then the spouse must act as a representative of the children and share with the children any damages award that is received . (However, the spouse can never receive less than one-third of the recovery, no matter how many children there are.) If the deceased was divorced, then any surviving children of the deceased would hold the claim jointly. O.C.G.A. § 51-4-2.
In the event that there is no surviving spouse and no surviving children, then the claim for wrongful death would pass to the deceased’s parents. If the parents are still married, then the claim is held jointly between them. If one of the parents is dead, then the right remains in the surviving parent. If the parents are divorced, then the right is still in both of them; however, proof of abandonment, severed relations with the deceased child, or failure to pay child support on the part of one of the parents can destroy or reduce that parent’s right to recover. O.C.G.A. § 19-7-1.
When there is no surviving spouse and no surviving children who can bring the claim, then the administrator or executor of the deceased’s Estate may bring an action for wrongful death. Any damages recovered are held for the benefit of the next of kin. O.C.G.A. § 51-4-5.
What Wrongful Death Claims can be Brought?
Two distinct claims that may be brought in conjunction with wrongful death. The first claim is the claim created by statute for the wrongful death of the person. The purpose of this claim is to establish the “full value of the life of the deceased” from the perspective of the deceased, which includes both the economic value of the deceased’s life and also the intangible element incapable of exact proof. The economic value is basically the amount of money the deceased would likely have earned had he or she lived until natural death. The intangible element is related to the non-economic factors such as relationships, altruistic activities, and the general impact the person had on surrounding persons.
The second claim related to wrongful death is the claim held by the Estate of the deceased. This claim would include things such as medical expenses incurred as a result of the injury prior to death, conscious pain and suffering prior to death, and funeral expenses.
Deadlines for Georgia Wrongful Death Claims: The Statute of Limitations
The statute of limitations is the law that controls how long a party has to bring a lawsuit in the State of Georgia for a wrongful death claim. The statute provides that you have two years from the date of the deceased’s death to bring the claim. O.C.G.A. 9-3-33.
With regard to wrongful death suits arising out of motor vehicle accidents, new case law provides that the statute of limitations is “tolled” during the time in which any criminal charges with respect to the defendant (in the wrongful death case) are pending. In other words, if Driver A negligently operates his motor vehicle, causing the death of Driver B, then the the statute of limitations with respect to Driver B’s wrongful death case “freezes” until any criminal charges arising out of the accident with respect to Driver A are determined by a court. Once Driver A is found guilty or not guilty of whatever charges were filed against him, then the statute of limitations on the wrongful death claim begins to run, so there will be two more years to bring the claim.
There is also a five year tolling provision for the claim of the Estate if it is not probated, meaning that the Estate’s portion of the claim can be brought for up to seven years in some cases.
In a wrongful death case, the burden of proof is on the Plaintiff, or party bringing the claim, to prove each element of his or her case by a preponderance of the evidence. A preponderance of the evidence is simply a “greater weight” of evidence than that of the opposing party. An often quoted saying goes that a preponderance is equally weighted evidence plus the weight of a feather. In the case of negligent actions by the wrongdoer in wrongful death, the Plaintiff must show that the wrongdoer breached a duty of care owed to the deceased (“negligence”) and that this negligence caused the deceased’s death. The statute then provides for the measure of damages caused by the loss of life. In cases where a criminal conviction has been obtained by the State against the wrongful death defendant, such as in a case of a criminal homicide, evidence of the criminal conviction may be very helpful in proving a wrongful death case because of the higher burden of proof required of prosecutors in criminal proceedings. (In criminal cases, the burden of proof is “beyond a reasonable doubt.”)
The evidence needed to prove a case of wrongful death will vary with the circumstances of individual cases. The most important point to keep in mind with respect to evidence is that time destroys it at a very rapid rate. Witnesses need to be identified, photographs need to be taken of the scene of death or incident, and tangible evidence needs to be gathered in a timely manner to prevent the degradation of key information that may be invaluable in proving a wrongful death case. For these reasons, it is crucial in a wrongful death case that a competent attorney be hired as soon as possible to assist in preserving and cataloging evidence.
It is also important for the family or personal representative of a wrongful death decedent to preserve personal items of the deceased that would aid a jury in awarding damages. The jury is charged by statute to look not only to the economic value that a deceased person may have been able to produce through future earnings had he or she lived but also at the intangible element and impact the person had in life. The intangible element of a person’s life is often valued by a jury at a figure much higher than that awarded from the economic perspective. Photos, letters, poems, and stories from the deceased’s life are all admissible to educate a jury on the quality of life that the deceased person lived, and there is no limit on the award a jury can find.
Georgia’s progressive wrongful death statute says that the value of human life is to be viewed and valued from the perspective of the deceased. In awarding damages for wrongful death, a jury is to consider the value of the person’s life to himself or herself. In practice this means that wrongful death lawyers in Georgia spend a great deal of time gathering details, photos, poems, letters, and stories from the deceased’s life. It is through testimony, video, and photos that a jury can be educated on the quality of life that the deceased lived. There is no limit on the award that a jury can return for wrongful death damages. It is only in rare circumstances that juries return less than $1,000,000.00 for the value of a person’s life in cases of clear liability.
The Estate of the deceased also holds the claim for any medical bills, conscious pain and suffering prior to death, and funeral expenses. If the deceased lived for even a short period of time after the mortal wound, the Estate holds the claim for the suffering, and if the deceased had time to apprehend that death was imminent, then the Estate holds a claim for that as well. An administrator of the Estate will be appointed to bring that claim in court.
Damages arising out of wrongful death are not subject to estate or income taxes, nor are they subject to the claims of the deceased’s creditors.
Few people like litigation, particularly when they may also be dealing with the death of a loved one. However, our elected representatives have provided Georgians with a progressive wrongful death statute that aims to reduce unnecessary deaths through making those responsible pay the full value of the deceased’s life. When wrongdoers are held accountable for their actions, incentives are created for them and others similarly situated to take appropriate precautions to protect life. A competent wrongful death attorney can minimize the inconvenience to grieving family members of pursuing a wrongful death claim, while making sure that the aims of justice, fairness, and Georgia law are realized.
A person bringing a wrongful death claim can realistically expect to spend time talking with attorneys, gathering information and evidence from the deceased’s personal life, and possibly attending legal proceedings such as depositions, hearings, and trial. Filing suit against the responsible parties is often necessary to bring about a meaningful resolution to the claim. The length of the process depends largely on the cooperation of the responsible parties. Ideally, all parties agree on what a reasonable jury verdict would be prior to trial and a settlement is reached. If a settlement cannot be had, then the case must go to trial. Trials can vary in length, but they generally do not last more than a few days.
The right attorney is really the key to a smooth process for settling the wrongful death claim. An attorney should provide up-front, realistic advice on the merits and complexity of the case, as well as what a likely jury verdict would be if litigated. Realistic expectations about the entire process from the start are the basis for a successful outcome.