Georgia Wrongful Death Statute Explained

Wrongful death in Georgia is a cause of action created by statute, meaning that it arises from a law passed by the legislature.  A claim for wrongful death can be brought when there is a death caused by the negligent, reckless, intentional, or criminal actions or another person, company, or business.

How do you bring a case arising out of a wrongful death?

Surviving family members usually have two claims that can be filed with the court.

The first claim, called the wrongful death claim, is created by statute. This claim is for the “full value of the life of the decedent” from the deceased’s eyes. O.C.G.A.§ 51-4-2(a).  This means that a jury is asked to consider what this person’s life meant to the deceased.  This can include both the economic value of the deceased’s life and also the non-economic value. The economic value primarily breaks down to the amount of money the deceased would likely have earned had he or she lived until natural death. The non-economic, or intangible, element considers what the deceased had that made him or her enjoy life.  Things like relationships, love, daily activities, volunteering, enjoying walks in the sun, lying out in the beach, running, getting married, studying for a driver’s license, raising a child, and all of the things that make up a life factor into the non-economic part.

The second claim, called the estate claim, permits the family of the decedent to recover for the pain and suffering of the decedent, any medical bills incurred before death, funeral expenses, and a few other items.  In Georgia, any claim for punitive damages must also be brought by the estate.  If the decedent had a will, then the administrator named in the will must bring the estate claim.  If the decedent did not have a will, then Georgia’s laws of intestacy will determine who can bring the claim.  See O.C.G.A.§ 53-2-1 et seq.

Which surviving family member files a Georgia wrongful death action?

The wrongful death statute sets out strict rules who can bring the claim. If the deceased left a surviving spouse, then the surviving spouse holds the authority to bring the claim—he or she is the only person who can bring it.  If the deceased also left surviving children, then the surviving spouse must act as a representative of the children and share with the children any damages award that is received. (Note that while the surviving spouse must share the damages award, 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(d).

A technicality can arise if the deceased has children, but one of the decedent’s children predeceased him.  In that case, the heirs of the child that predeceased the decedent—i.e., the decedent’s grandchildren through the child that died first—would not receive their parent’s portion.  Only when a decedent’s child is an original claimant in a wrongful death action, and then dies during the pendency of the claim, can that claimant’s children share in the recovery.  Tolbert et al. v. Maner, 271 Ga. 207, 209 (1999).

When there is no surviving spouse and no surviving children, then the administrator or executor of the deceased’s Estate may bring the action.  The damages recovered are held for the benefit of the next kin. O.C.G.A § 51-4-5.

How long does a family have to bring a wrongful death claim under the statute of limitations?

The statute limitations is usually two years from the date of the deceased’s death. O.C.G.A § 9-3-33.

If someone is killed because of a motor vehicle accident, the statute of limitations may be “tolled” (or paused) pending the outcome of a criminal prosecution against the at-fault driver.  Beneke v. Parker, 285 Ga. 733, 734 (2009).  A “crime” need not involve criminal intent or criminal negligence to fall within the purview of the tolling statute, O.C.G.A. § 9-3-99 .  A violation of the Uniform Rules of the Road is a misdemeanor, and a misdemeanor falls under O.C.G.A. § 9-3-99. Therefore, in any motor vehicle crash where the at-fault driver could have been charged with a crime or traffic violation, the statute of limitation for the wrongful death lawsuit may be tolled from the date of the violation until a final disposition of the traffic charge or for six years, whichever is shorter.  Harrison v. McAfee, 338 Ga. App. 393, 402 (2016).

The two year period set by the statute of limitation begins after that.

What “damages” can a jury award in a wrongful death case?

The value of human life is viewed and valued from the eyes of the deceased. In awarding damages for wrongful death, the jury is asked to consider the value of the person’s life to himself or herself.  Learning about who the person was and what made the person’s life special to him or her is what leads to an amount.  Photographs, videos, and stories help tell the story.  The amount of the verdict is up to the “enlightened conscience of the jury.”  Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 750 (2016).  For example, in a two week jury trial in which our firm represented the parents of a 4 year old boy who was killed in a defectively designed Jeep, a 12 member jury in Decatur County, Georgia awarded $120,000,000.00 ($120 million dollars) for the full value of the young boy’s life.

The Estate of the deceased also holds the claim for any medical bills, conscious pain and suffering prior to death, and funeral expenses. The Estate holds the claim for the suffering before death.  Additionally, the Estate holds a claim for “fright, shock, and terror” for the fear the decedent when he or she knew that death was imminent.  In the tragic case of the 4 year old boy, the jury returned a verdict of $30,000,000.00 ($30 million dollars) for the pain and suffering he endured.

Usually, the deceased’s will identifies the Executor.  If there is no will, then the laws of intestacy will be used to determine who can the claim.

Butler Tobin’s closing argument in a wrongful death case.

What should a family do after the loss of a loved one?

The first thing any family should do after losing a loved family member to wrongful death is to grieve properly.  There will be a host of emotions that come from losing a loved family member due to the negligent, or worse, willful actions of some other person or company.  And while it is very important that surviving family members properly mourn the loss of a loved parent or child, it is also important that the family gathers as much evidence as possible as soon as possible after the deceased’s wrongful death.  The reason: if you’re not gathering the evidence, the defendant probably is.

Take for example a tractor-trailer crash in which a truck kills the driver of another car.  As soon as that crash happens, the driver of the tractor-trailer is calling his company.  And once that company gets a call advising them of the crash, they are calling defense law firm and national insurance company who will rush defense experts out to the scene to gather the evidence.  They’ll use that evidence to build a defense aimed at avoiding responsibility.

Evidence from the tractor-trailer could show what happened in the seconds before the crash.  The tractor-trailer that caused the crash may have a “black box”—technically called an event data recorder, or “EDR”—that gathers information about the truck’s speed, braking, and time driven.  But if the family’s lawyer doesn’t act quickly to preserve the EDR data, an irresponsible trucking company might delete the data.  Other evidence that should be gathered includes skid marks on the road and debris that came off vehicles in the wreck.  Before long, the road will re-open and cars will travel across the site of the crash.  Rain can wash away debris or erase tracks left on the shoulder of the road.  In other cases, the surveillance video that shows a crime has been committed might get recorded over, or a key witness might move or change his phone number.  That is why it is so important to gather the evidence, and do it quickly.  Even if the statute of limitations gives two years to file a wrongful death case, it is actually very important that a lawyer gets started as quickly as possible.

Of course mourning the loss of a loved family member takes priority.  That is the most important thing.  But consulting with a knowledgeable attorney who shows empathy and skill in handling wrongful deaths probably comes second.  The attorney you hire should know what to do, and how to do it.  He or she should give you the freedom to focus on re-building your life while the law firm focuses on the case.  Filing a lawsuit against the responsible party is almost always necessary. While a settlement may be reached, the goal should always be preparing the case for a trial.  Not only is that the best way to be ready for trial, but it is also the best way to make the defendant want to settle.

Georgia Wrongful Death Lawyer

If you’d like to talk with one of our experienced attorneys, call us for a free private consultation.  Our main office’s telephone number is 404-JUSTICE (404-587-8423).  It costs no money to talk with us and learn more about the law and what make us different—and if we can’t take your case, we’ll recommend another lawyer who can.  We work on a contingency fee arrangement which means if you decide to hire our firm it will cost you no money up front.  We don’t bill per hour; we don’t charge a retainer; and we don’t charge a flat fee.  We only get paid at the end when you get paid.  Our fee is a percentage of the damages we win at trial or through settlement.

If you are reading this article because you have experienced a tragic loss in your life, we are sorry.  We hope this article has been helpful.

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