You've Got Questions
We've Got Answers.
1) What qualifies as a wrongful death?
In Georgia, a wrongful death is one that is the result a “homicide.”
This is different than a criminal homicide, and a wrongful death homicide is defined by statute.
Specifically, a wrongful death homicide includes “all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.”
Recent courts still characterize this to mean a death resulting from a “wrongful act, default or negligence,” which appears to be language from Lord Campbell’s Act in England.
Stated another way, any right of action for damages that was actionable at common law is available under the wrongful death statute.
O.C.G.A. § 51-4-1(2)
Dowling v. Lopez, 211 Ga. App. 578, 579, 440 S.E.2d 205, 208 (1993)
Caskey v. Underwood, 89 Ga. App. 418, 420, 79 S.E.2d 558, 560 (1953)
2) Are wrongful death claims allowed for product liability cases?
Georgia’s wrongful death statutes specifically incorporate claims for product liability.
Specifically, a qualifying death “includes all cases in which the death of a human being results . . . from property which has been defectively manufactured, whether or not as the result of negligence.”
Georgia’s Supreme Court has interpreted this to include all available product liability theories and claims. Those theories include defective manufacture; defective packaging and labeling, and failure to warn of known defect.
However, breach of warranty claims for product sellers seem to be claims that are not viable, unless it is related to the sale and consumption of adulterated food, drugs, and/or alcohol.
O.C.G.A. § 51-4-1(2)
O.C.G.A. § 51-1-11
O.C.G.A. § 51-1-23 (Sale of Unwholesome Provisions)
O.C.G.A. § 51-1-24 (Sale of Adulterated Drugs or Alcoholic Beverages)
Stiltjes v. Ridco Exterminating Co. Inc., 256 Ga. 255, 347 S.E.2d 568 (1986)
Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 789, 386 S.E.2d 513, 514 (1989)
Higginbotham v. Ford Motor Co., 540 F.2d 762, 771–72 (5th Cir. 1976)
3) Are punitive damages available for wrongful death?
No, punitive damages are not available under Georgia’s wrongful death statutes, as they don’t explicitly allow for them.
Also, the statute is penal in nature, so wrongful death damages are already punitive.
However, estates are allowed to pursue punitive damages.
Georgia Osteopathic Hosp., Inc. v. O'Neal, 198 Ga. App. 770, 773, 403 S.E.2d 235, 240 (1991)
Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340, 319 S.E.2d 470, 480 (1984)
Childs v. United States, 923 F. Supp. 1570, 1584 (S.D. Ga. 1996)
Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542, 546 (1938)
W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 43 (1932)
Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340–41, 319 S.E.2d 470, 480 (1984)
Mascarenas v. Cooper Tire & Rubber Co., 643 F. Supp. 2d 1363, 1378 (S.D. Ga. 2009)
4) Can a child born out of wedlock pursue a wrongful death claim of a parent?
Yes, a child that is born out of wedlock and has not been legitimized can bring a wrongful death claim on behalf of a deceased parent.
Georgia’s legislature expressly addressed this issue in the statute due to constitutional challenges and other confusion created by older versions of the wrongful death statute.
O.C.G.A. § 51-4-2(f)
Tolbert v. Murrell, 253 Ga. 566, 571, 322 S.E.2d 487, 491 (1984)
Edenfield v. Jackson, 251 Ga. 491, 494, 306 S.E.2d 911, 914–15 (1983)
Weldon v. Williams, 170 Ga. App. 589, 591, 317 S.E.2d 570, 574 (1984)
5) When does the statute of limitations for a wrongful death claim begin?
The statute of limitations begins to run as soon as the right to a wrongful death claim accrues – upon the death of the decedent.
That’s because it’s impossible to know the nature of the loss or the person having standing to sue until death occurs.
This may sound elementary, but it has been an issue repeatedly addressed. That’s because the wrongful conduct may have occurred much earlier than the actual death.
For instance, a drunk driver could cause a car accident that puts someone in a coma for over a year. Eventually the person dies, and a wrongful death claim accrues to his surviving heirs. The statute of limitations does not begin at the time of the car accident. Instead, it begins when the decedent actually passes away.
O.C.G.A. § 9-3-33
Williams v. Georgia Dep't of Hum. Res., 272 Ga. 624, 626, 532 S.E.2d 401, 404 (2000)
Miles v. Ashland Chem. Co., 261 Ga. 726, 727–28, 410 S.E.2d 290, 291 (1991)
Lovett v. Garvin, 232 Ga. 747, 748, 208 S.E.2d 838, 839–40 (1974)
Emory Univ. v. Dorsey, 207 Ga. App. 808, 809, 429 S.E.2d 307, 308 (1993)
Bryant v. Browning, 259 Ga. App. 467, 467–68, 576 S.E.2d 925, 926 (2003)
6) Can the statute of limitations be extended by the “discovery rule?”
Georgia’s Supreme Court has expressly refused to apply the discovery rule to wrongful death claims.
The discovery rule states that a right of action does not “accrue” until the injured person discovers the cause of his/her injury. Theoretically, it has been argued that the surviving heirs entitled to bring a wrongful death claim should be allowed more time under the statute of limitations, because they may not even realize that the death was caused by someone else’s wrongful conduct.
Since Georgia’s wrongful death statute is strictly construed by its plain terms, Georgia’s Supreme Court has expressly refused to apply the discovery rule to wrongful death claims.
Miles v. Ashland Chem. Co., 261 Ga. 726, 727, 410 S.E.2d 290, 291 (1991)