Wrongful death laws recognize that tortious behavior ranging from assaults to careless driving have deadly consequences. Fatal incidents cause emotional and financial losses for survivors. Estates incur expenses arising from wrongful death. The following discusses the grounds and process for wrongful death actions in Georgia.
The Grounds for a Wrongful Death Claim?
The wrongful death statutes use the word “homicide.” Under Georgia Code Section 51-4-1, this term encompasses more than criminal acts such as murder or manslaughter. A wrongful death claim may also arise from the following acts that cause death
Negligence
The failure of a party to exercise reasonable care can prove fatal. Often, wrongful death cases arise from motor vehicle negligence. According to the Insurance Institute for Highway Safety, Georgia saw 1,377 crashes with fatalities in 2019. The deaths numbered 1,491.
At-fault drivers cause deadly crashes by driving under the influence of alcohol or other controlled substances, distracted driving, and speeding. In 2019, 43 people died from crashes involving distracted driving, such as sending and viewing texts, emails, and social media posts; conversations, switching radios, and personal grooming activities. Among the fatal crashes attributed to distracted driving, 81 percent took place away from intersections.
Property owners face wrongful death claims from the survivors or estates of invitees who die from dangerous conditions that the property owner negligently fails to correct; Premises liability-based claims involve lack of security measures to prevent foreseeable crimes by third parties, liquids or objects left on floors, lack of fencing around pools, broken rails and steps, and faulty fire prevention measures. Wrongful deaths can also occur from medical malpractice.
Manufacturing Defects
Makers face strict liability when their products cause death. That means claimants need not prove the negligence of the manufacturer. Examples of manufacturing defects include:
- Malfunctioning brakes due to absence of pads or rotors
- Contaminated food or beverages
- Lack of protective seals on medicine bottles
- Airbags that do not deploy upon a crash of sufficient force
Crimes
A wrongful death case is civil, even if the death occurs via a crime. That means you need only meet the “preponderance of the evidence standard,” which is that it was more likely than not that the defendant committed the act causing death.
Damages for Wrongful Death
The Georgia wrongful death statutes compensate survivors or the estate for bills by hospitals, doctors, ambulance services, and others treating the decedent’s final illness or injury. Death-related expenses also include the funeral bill. The personal representative of the estate seeks these medical and funeral expenses
The survivors can seek the “full value of the life of the decedent.” The defendant does not get a deduction for the expenses incurred by the victim had that victim lived. Other than this qualifier, the statute does not define “full value.”
Generally, “full value” takes into account the economic value and non-economic value of the decedent’s life. Within the economic component lie the wages or salaries, investments, estate, and retirement accounts that the decedent would reasonably have earned had the wrongful death not occurred. These damages seek to compensate survivors for the lost financial support the decedent would have provided.
Lost anticipated earnings turns on past salaries, wages, or profits from the decedent’s businesses, education, skills, prior work experience, and prospects for promotions or advancements. You rely upon resumes, school transcripts, tax returns and forms, skills or jobs certifications, and testimony from employers or colleagues to establish the skills, education, and anticipated earnings. The estimated values of stocks, bonds, mutual funds, and retirement plans at the end of the decedent’s life expectancy help show what survivors may have inherited. Much of this proof involves economic, financial, and investment experts.
You may seek to prove and include the value of the decedent’s services as a homemaker. The wrongful death law also includes in “full value” the lost companionship, counsel, and other facets of the parent-child or spousal relationship. To that end, you offer photographs and videos of vacations, birthdays, holidays, games, school functions, and family gatherings.
The Parties Who Can Bring a Wrongful Death Lawsuit?
In some jurisdictions, only the personal representative of the estate can maintain a wrongful death action on behalf of the estate and survivors. Sections 51-4-2 and 51-4-4 create a pecking order for who may serve as plaintiff in a wrongful death suit when it comes to recovering the full value:
- The spouse, if the decedent had one or survives the decedent
- Children, if the decedent had children or is survived by children
- Parents, if the decedent has neither a surviving spouse nor surviving children
- Personal representative of the estate, if there are no spouse, children, and parents surviving
Brothers, sisters, grandparents, and cousins do not have standing to sue for wrongful death. However, a child born out of wedlock may sue.
Comparative Negligence
Defendants may seek to reduce their liability to the living and the dead through comparative negligence. Georgia recognizes a modified comparative negligence. A wrongful death plaintiff may recover damages so long as the decedent’s negligence is less than 50 percent. In such a case, the plaintiff’s damages are reduced by the percentage of the decedent’s negligence. For example, survivors with $1 million in damages would recover $900,000 if the decedent’s level of fault stands at 10 percent ($1,000,000-($1,000,000 x 0.10)).
Georgia Code Section 51-12-33 sets forth the comparative negligence approach to apportion damages between the plaintiff and defendant. Nothing in the statute’s language suggests that comparative negligence does not apply when the wrongful death claim turns on strict liability in a manufacturing defect case or when the wrongdoer acted intentionally.
Statute of Limitations
A party has two years from the decedent’s death to file a wrongful death lawsuit. Georgia law tolls, or suspends, the running of this deadline until the conclusion of a criminal case, if the wrongful death arises from a criminal act or omission. If you seek to invoke rolling, you must still initiate a wrongful death action within six years after the criminal act.
Survival vs. Wrongful Death
Wrongful death claims seek primarily to compensate a decedent’s family for their losses. This happens through recovery of the decedent’s “full value.”
In a survival claim, the focus turns to the losses of the decedent incurred prior to death from some tort. Survival claims may, but do not necessarily, involve negligence, defective products, or criminal acts that cause death. The decedent may have suffered injuries from a fall or car wreck that did not result in death. From these injuries come claims that the decedent could have pursued for lost income, lost earning capacity, medical expenses, and pain and suffering had the decedent been living.
The personal representative has standing as plaintiff in survival claims. The proceeds that remain after the payment of medical expenses or funeral bills (if the survival claim arises from an act of wrongful death) become part of the estate to be distributed according to the decedent’s will or under the intestate law if the decedent had no will.