Georgia Wrongful Death Law

Wrongful death law is complex and involves numerous decisions and challenges. A wrongful death claim can arise from many different negligent actions or activities.  Just a few of them are car accidents, motorcycle accidents, accidents with tractor-trailers, medical malpractice, nursing home neglect, defective automobiles or products, inadequate security at stores or hotels, dangerous medications, exposure to dangerous chemicals, or any number of other negligent, reckless or willful ways

 As a result, we are frequently contacted by someone whose family member suffered an unexpected death caused by someone else’s negligence, carelessness, or poor decisions.  Anyone who has suffered the tragic death of a family member should consult with an experienced injury lawyer in Athens before trying to handle a death claim on their own.  There are just too many important matters to investigate and consider before attempting to resolve a wrongful death claim.

Insurance companies are quick to contact the family after death because they want to try to reach a settlement before the family consults with a lawyer.  They know that the insurance company can save thousands of dollars, and perhaps even millions of dollars if they can talk a grieving family member into taking a settlement check and signing a release before they contact an experienced lawyer.  Sticking a check for $100,000 in a grieving person’s hands will sometimes get them to settle but the person or family could be missing out on a lot more money if they had help and knew all of the facts and how much insurance is available.  Overlooked or undiscovered evidence surrounding the negligent acts that caused the death, or additional or excess insurance policies that are not identified, can cost a family millions of dollars in additional wrongful death compensation.  That is why speaking with an experienced lawyer is a necessity.

Dan Chapman & Associates are experts in wrongful death law.  It is a large part of our law practice, and we have handled many wrongful death cases in the Metro Atlanta area, all across the State of Georgia, and even in several neighboring states.

If you believe your loved one died because of the carelessness or negligence of someone else, call us now at (678)831-8875 for a free no-obligation consultation.  You and your departed loved one deserve to have all of the facts and deserve full compensation, because of the loss of a loved one and the related harms and losses that were suffered.  

What Is Wrongful Death?

“Wrongful death” is a legal term used to describe an untimely and unnatural death caused by the negligent, careless, unlawful or reckless actions of another.  A wrongful death claim is a civil claim for monetary damages made against the person, business or governmental entity responsible for causing, or contributing to, the injuries that caused the death of an innocent person. Wrongful death claims are normally brought by one or more of the surviving family members of the person who was injured and died.

You need to understand that a wrongful death claim has nothing to do with criminal law.  Even though a person’s death can be caused by criminal actions, such as a crash caused by a DUI driver, there will be criminal law consequences for causing the crash and death and there can also be civil law consequences.  A wrongful death claim is a civil law claim that can be pursued before, during or after a criminal case is pursued against the wrongdoer. Also, you need to know that the defendant driver’s acquittal of any criminal charges will have no bearing on the civil wrongful death claim because they are separate and distinct cases, and involve different types of evidence and different burdens of proof.

In order to convict a DUI driver of vehicular homicide, the prosecutor must prove the elements of the crime using the “beyond a reasonable doubt” burden of proof.  That is a very high burden of proof.  However, in order to recover damages in a civil wrongful death case, the plaintiff family member must only prove the negligent acts that caused the death by a lesser burden of proof known as “a preponderance of the evidence.”  Under the preponderance of the evidence burden of proof, the plaintiff must show that is more than 50% likely that the negligent acts or omissions of the at-fault driver caused the death of the other driver.  In other words, in a wrongful death case, the jury can still have reasonable doubts as to what caused the crash and death as long as they believe the at-fault driver was more than 50% responsible for the crash that caused the death.

Georgia’s Wrongful Death Act

The right to pursue a claim for wrongful death has not always existed in this country. When our country was founded, our laws were copied from the common law of England.  Under those early laws, there was no claim for wrongful death because the English common law held that an injury claim died with the injured person.  When the injured person died, the injury claim was gone. Therefore, only living persons could pursue civil claims for injuries.  Georgia and a number of other states did not see justice in having the injury claim die with the injured person, so they passed laws to allow the injury claim to survive the death of the injured person.  This surviving claim became known as a wrongful death claim.  The first version of Georgia’s Wrongful Death Act was passed more than 100 years ago, and it has been the subject of numerous and significant changes over the years. Today, Georgia’s Wrongful Death Act is found in the tort laws located in the following 5 Code sections:

• O.C.G.A. § 51-4-1 “Definitions”
• O.C.G.A. § 51-4-2 “Homicide of spouse or parent; survival of action”
• O.C.G.A. § 51-4-4 “Homicide of a child”
• O.C.G.A. § 51-4-5 “Recovery by administrator or executor of the decedent”
• O.C.G.A. § 19-7-1 “Parental power; recovery for the homicide of child”

Who Can Pursue A Wrongful Death Claim? 

A wrongful death claim cannot be pursued by anyone who knew or was related to the person who was injured and died. Georgia’s Wrongful Death Act only gives the right to pursue a wrongful death claim to certain family members. The Georgia Wrongful Death Act gives the right to the wrongful death claim in an orderly fashion as shown below:

1. first to the spouse of the decedent;
2. if there is no spouse, then to the decedent’s children;
3. if there is no spouse or children, then to the living parent(s) of the decedent; and
4. if there is no spouse, children or living parent, then to the administrator of the decedent’s estate.

Therefore, in Georgia, only the dead person’s spouse, children or parents, in that order of priority, have the legal right to file a wrongful death claim.  Other relatives such as a sibling, an uncle, an aunt or a grandparent, have no right in Georgia to bring a wrongful death claim unless they are appointed as the administrator of the dead family members estate and no other family member in the order of priority is available to bring the claim.

Distribution of Wrongful Death Proceeds

The person under Georgia law with the right to bring a wrongful death claim is not automatically the one who has the right to any money recovered from the wrongful death claim.  The Wrongful Death Act provides for who has the right to receive any money recovered for the wrongful death of a family member.  The person given the power to file, prosecute and settle a wrongful death claim must distribute any money recovered to the beneficiaries as specified in the Wrongful Death Act.  For example, under Georgia law, if the husband is killed in a car wreck and is survived only by a wife, then the wife is the sole beneficiary and she is entitled to keep 100% of any amount recovered for the wrongful death claim.  However, if the decedent husband is survived by his wife and two children, then the wife has the right to bring the death claim but she must split any recovery equally between herself and the two children.   This means that the wife and each child would receive one-third of any monies recovered for the wrongful death claim.  The spouse is entitled to a minimum of one-third of the recovery,  If there were 4 children and a wife, the surviving wife would get one-third of the recovery and the remaining two-thirds would be divided equally between the four children.  See O.C.G.A. § 51-4-2(c).

Pursuing A Wrongful Death of a Child

Georgia law allows the parents to bring the wrongful death claim for the death of their minor child.  See O.C.G.A. § 19-7-1 (c)(2). The parents also have the right to assert a wrongful death claim in the case of their adult child if their son or daughter was not married and had no children at the time of their death. Each living biological parent of a deceased child has the right to pursue and receive an equal share of the wrongful death claim proceeds. If the parents are married and living together when the child dies, then the wrongful death claim belongs to both of them.  However, if both parents are living but are divorced, separated or living apart, when the child dies, then either parent can pursue the wrongful death claim, but they must equally share one-half of the recovery with the other parent.   In the event that one parent makes a recovery, they are obligated to attempt to locate the other parent and share one-half of the proceeds.  If one parent is deceased, then the wrongful death claim belongs solely to the surviving parent and that surviving parent gets the entire recovery.   If both parents are deceased at the time of the child’s death, then the wrongful death claim belongs to whoever becomes the Administrator of the deceased child’s Estate.

Recoverable Damages For Death

Georgia has a unique approach to the award of damages in a wrongful death case. In Georgia, all damages related directly to the decedent’s own injury and loss. There are no damages that result from any loss suffered by the surviving family members due to the death.  Under Georgia law, there are three categories of damages that potentially can be sought in a death case.  They are:

1. The full value of the life of the decedent as shown by the evidence.  See O.C.G.A. §§ 51-4-2(a) and 19-7-1(c)(1)
2. The funeral, medical and other necessary expenses resulting from the injury or death of the deceased person. O.C.G.A. § 51-4-5(b).
3. The medical expenses, pain and suffering by the decedent, and other damages arising during the period between the decedent’s injury and subsequent death. O.C.G.A. § 9-2-41 (This is known as a “survival” claim.)

The claim for the “full value of the life of the decedent” is what is sought in the wrongful death claim.  The only statutory definition of “full value of the life” is not much help in determining value of compensation.  This definition is found in O.C.G.A. § 51-4-1(1) which provides: “Full value of the life of the decedent, as shown by the evidence” means the full value of the life of the decedent without deducting for any necessary or personal expenses of the decedent had he lived.  The simple answer is that the claim is based on what was lost by the person who died and what he or she will miss out on.  In a wrongful death trial, we try to show the jury what the decedent was like while he or she was alive.  What he did for fun, how much she enjoyed her life and family and what was lost when this life was cut short.

The other two claims listed above that result from the death, which include medical bills, funeral expenses and pain and suffering, are not part of the wrongful death damages in Georgia.  These claims are called Estate Claims and must be brought by the administrator of the estate.  The Estate Claim must go through probate court, but the wrongful death claims does not go through probate.

Dan Chapman & Associates are experts in wrongful death law.  It is a large part of our law practice, and we have handled many wrongful death cases in the Metro Atlanta area, all across the State of Georgia, and even in several neighboring states.

If you believe your loved one died because of the carelessness or negligence of someone else, call us now at (678)242-7626 for a free no-obligation consultation.  You and you departed loved one deserves to have all of the facts and deserve full compensation, because of the loss of a loved one and the related harms and losses that were suffered.