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Wrongful Death Overview FAQ

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1)  What potential claims are available after a loved one dies?

 

Generally speaking, there are three categories of claims that can be pursued after a loved one passes away.

 

Georgia’s wrongful death statutes allow certain people to pursue a claim for “wrongful death.”  The damages that may be recovered are for the “full value of the life of the decedent.”

 

The remaining two claims are often interchangeably referred to as the “estate” claims or “survival” actions.  The decedent’s estate can pursue claims for the “funeral, medical, and other necessary expenses” that are related to the wrongful conduct that caused the injury and death.  However, this statute only relates to objective money damages.

 

The final category of claims that may be pursued by the estate are for any claim the decedent may have had or been pursuing prior to their death.  This includes claims for pain and suffering the decedent may have experienced prior to their death.  Or, these claims may relate to independent, existing injury claims that the decedent may have already been pursuing, unrelated to their death.

 

So, even though the estate claims are provisions that are found in Georgia’s wrongful death statutes, they are separate and distinct claims.

Learn more @ Death Damages & Compensation FAQ

 

References:

O.C.G.A. § 51-4-2 (Homicide of Spouse or Parent; Survival of Action; Distribution of Recovery);

O.C.G.A. § 51-4-4 (Homicide of a Child);

O.C.G.A. § 19-7-1 (Parental Power, Recovery for Homicide of Child)

O.C.G.A. § 9-2-41 (Action for Tort and Certain Causes of Action not to Abate by Death of Either Party);

McQurter v. City of Atlanta, Ga., 572 F. Supp. 1401, 1422 (N.D. Ga. 1983)

Gay v. Piggly Wiggly S., Inc., 183 Ga. App. 175, 180, 358 S.E.2d 468, 473 (1987)

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2)  Who can bring a wrongful death claim?

 

Georgia’s statutes expressly prescribe who can bring a wrongful death claim. 

 

O.C.G.A. § 51-4-2(a) provides two categories of people who may pursue these claims:  “the surviving spouse or, if there is no surviving spouse, a child or children.”

 

But, if there are no surviving spouse or surviving children, we must look to other statutes.  O.C.G.A. § 19-7-1(c)(1) provides that a parent is next in line to pursue a wrongful death claim for the death of a child, regardless of whether the child is a minor or an adult.

 

If the decedent is not survived by a spouse, child, or parent, then the right to pursue the claim goes to the decedent’s estate on behalf of the deceased’s next of kin, as provided under O.C.G.A. § 51-4-5(a).

 

Learn more @ Who Can Sue FAQ

References:

O.C.G.A. § 51-4-2(a)

O.C.G.A. § 19-7-1(c)(1)

O.C.G.A. § 51-4-4

O.C.G.A. § 51-4-5(a)

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3)  What is the history of Georgia’s wrongful death act?

 

Historically, a claim for wrongful death was not permitted under common law.  So, if a loved one died due to another person’s wrongful conduct, there was not remedy.

 

Georgia enacted its first wrongful death act in 1850, modeled after England’s Lord Campbell Act that was enacted just a few years prior.

 

Since there was no common law right to wrongful death claims, the statutes are strictly applied by their plain terms.

 

References:

Brock v. Wedincamp, 253 Ga. App. 275, 277, 558 S.E.2d 836, 839 (2002)

Stewart v. Bourn, 250 Ga. App. 755, 756–57, 552 S.E.2d 450, 451–52 (2001)

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 43 (1932)

Tolbert v. Maner, 271 Ga. 207, 208, 518 S.E.2d 423, 425 (1999)

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4)  What is the purpose of Georgia’s wrongful death statutes?

 

One obvious purpose of the wrongful death statute is to allow recovery for a person’s death.

 

But, that is not the only purpose as captured by Georgia courts.

 

Georgia’s Supreme Court has repeatedly noted these statutes create a cause of action that did not otherwise exist.  In this way, the statutes “create a new cause of action and new rights and duties for the prevention of criminal and negligent homicides and to meet social and economic needs. The aim of these statutes is to strike at the evil of the negligent destruction of human life, by imposing liability upon those who are responsible . . . .”

 

Expanding on this purpose, the Georgia Supreme Court has summarized that the statutes “serve dual roles:  they seek to prevent the loss of human life by making ‘homicide expensive,’ and they seek to preserve the social and economic order.”

 

In summary, wrongful death claims are, in a way, both compensatory (from the standpoint of the surviving family) and penal (from the standpoint of the defendant) in nature.

 

References:

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 42–43 (1932)

Bibbs v. Toyota Motor Corp., 304 Ga. 68, 74, 815 S.E.2d 850, 856 (2018)

Carringer v. Rodgers, 276 Ga. 359, 364, 578 S.E.2d 841, 844 (2003)

W. & Atl. R. Co. v. Michael, 175 Ga. 1, 165 S.E. 37, 43 (1932)

Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542, 546 (1938)

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5)  Can a wrongful death claim be pursued even though the decedent caused their own death?

 

Generally speaking, a wrongful death claim cannot be pursued if the decedent’s own actions caused their death. 

 

Conceptually, the wrongful death claim is derivative of the decedent’s own right to pursue a claim.  Meaning, if the decedent could not have pursued a claim and recovered damages (if they were still alive) then their wrongful death claim will similarly be barred.

 

Another way of understanding this concept is from the defendant’s perspective.  Just as the right to pursue a wrongful death claim survives to certain heirs of the decedent, so do the defenses to those claims. 

Learn more @ Civil Homicide FAQ

 

References:

Dion v. Y.S.G. Enterprises, Inc., 296 Ga. 185, 187, 766 S.E.2d 48, 50 (2014)

deVente v. Flora, 300 Ga. App. 10, 13, 684 S.E.2d 91, 93 (2009)

Mowell v. Marks, 269 Ga. App. 147, 149, 603 S.E.2d 702, 704 (2004)        

Bibbs v. Toyota Motor Corp., 304 Ga. 68, 75, 815 S.E.2d 850, 856 (2018)

United Health Servs. of Georgia, Inc. v. Norton, 300 Ga. 736, 738–39, 797 S.E.2d 825, 827 (2017)

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6)  What if a beneficiary’s negligence caused the death – can a wrongful death claim still be pursued?

 

Wrongful death claims are not precluded just because one of the beneficiaries to the claim may have contributed to the death. 

 

However, this limitation only applies if there are multiple beneficiaries. 

 

And, you need to be able to differentiate between a beneficiary of wrongful death recovery and the individual who actually has standing to pursue the claim.

 

References:

Happy Valley Farms v. Wilson, 192 Ga. 830, 838–39, 16 S.E.2d 720, 725 (1941)

Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518–19, 191 S.E.2d 324, 326 (1972)

Matthews v. Douberley, 207 Ga. App. 578, 581–82, 428 S.E.2d 588, 590–91 (1993)

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7)  Do Georgia’s wrongful death statutes apply if the death occurred outside of Georgia?

 

No, Georgia’s wrongful death statute does not apply unless the claims arise under the jurisdiction of Georgia courts.

 

Meaning, the statute has no “extraterritorial application.”  So, there are no remedies for a claim of wrongful death in Georgia for deaths that occur outside of its borders.

 

References:

Auld v. Forbes, 309 Ga. 893, 896–97, 848 S.E.2d 876, 880 (2020)

Selma, Rome & Dalton R. Co. v. Lacy, 43 Ga. 461, 463 (1871)

Green v. Johnson, 71 Ga. App. 777, 778, 32 S.E.2d 443 (1944)

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8)  What are the pleading requirements to pursue a wrongful death claim?

 

Generally, the claims against an accused must be pled sufficiently to put the defendant on notice of the nature of the claims so they may intelligently prepare their defense. 

 

As a rule of thumb, you must specifically plead that you are specifical pursuing wrongful death.  The claim will not be presumed just because you allege other claims arising from the death of a loved one (i.e. constitutional claims).

 

One court has held that a complaint that demands recovery for the full value of the decedent’s life is not enough to plead a wrongful death claim.  Contrastingly, another court has held that be pleading a wrongful death claim does not require the plaintiff to plead damages for the “full value of a decedent’s life.”

 

However, another Georgia case suggest that making a claim for negligence and referencing the wrongful death statutes is enough to plead a claim for wrongful death.

 

Finally, the status of the beneficiaries of apportionment of a wrongful death claim need not be pled in a Complaint either.

 

References:

Gilmere v. City of Atlanta, Ga., 864 F.2d 734, 737 (11th Cir. 1989)

Rockdale Health Sys., Inc. v. Holder, 280 Ga. App. 298, 299, 640 S.E.2d 52, 54 (2006)

Felio v. Hyatt, 639 F. App'x 604, 611 (11th Cir. 2016)

Lewis v. Williams, 78 Ga. App. 494, 498–99, 51 S.E.2d 532, 536 (1949)

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9)  If the wrongful death claim settles, can I still pursue an estate-based claim?

 

Settlement of a wrongful death claim does not preclude the estate from continuing to pursue any estate-based claims, such as for funeral and medical expenses as well as pain and suffering of the decedent.

 

That’s because each claim is separate and independent, and the claims may not necessarily be pursued by the same person.

 

For instance, after the death of a loved one, the wrongful death claim first belongs to the surviving spouse.  But, let’s assume that the decedent’s last will and testament appointed a different person to be the executor of their estate (let’s assume the decedent sibling).

 

In this scenario, only the decedent’s spouse is the only person who can pursue – and settle – the wrongful death claim.  Meanwhile, the decedent’s sibling, as executor of their estate, is the only person who can pursue any estate-based claims.

Learn more @ Estate-Based Claims FAQ

References:

O.C.G.A. § 51-4-2(a) (Homicide of Spouse or Parent; Survival of Action; Distribution of Recovery);

O.C.G.A. § 9-2-41(a) (Action for Tort and Certain Causes of Action not to Abate by Death of Either Party);

Smith v. Wood, 115 Ga. App. 265, 269–70, 154 S.E.2d 646, 650 (1967)

Caskey v. Underwood, 89 Ga. App. 418, 419–20, 79 S.E.2d 558, 560 (1953)

Mays v. Kroger Co., 306 Ga. App. 305, 306, 701 S.E.2d 909, 911 (2010)

Grant v. Georgia Pac. Corp., 239 Ga. App. 748, 750–51, 521 S.E.2d 868, 870 (1999)

Smith v. Mem'l Med. Ctr., Inc., 208 Ga. App. 26, 27, 430 S.E.2d 57, 59 (1993)

Dowling v. Lopez, 211 Ga. App. 578, 580, 440 S.E.2d 205, 208 (1993)

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10)  What are Georgia’s statutes that may provide right to recovery upon a person’s death?

 

Georgia’s wrongful death statutes include:

 

  • O.C.G.A. § 51-4-1 (Definitions)

  • O.C.G.A. § 51-4-2 (Homicide of Spouse or Parent; Survival of Action; Distribution of Recovery);

  • O.C.G.A. § 51-4-4 (Homicide of a Child);

  • O.C.G.A. § 19-7-1 (Parental Power, Recovery for Homicide of Child)

 

Although a provision of the wrongful death statutes, O.C.G.A. § 51-4-5 is recognized as the estate claim (or “survival action”) that is legally and conceptually different than wrongful death claims.

 

Some other statutes that permit tort injuries and other wrongful death claims include:

  • O.C.G.A. § 9-2-41 (Action for Tort and Certain Causes of Action not to Abate by Death of Either Party);

  • O.C.G.A. § (Liability for Personal Injuries or Death; Who May Recover; Measure of Damages) – applies to railroad employees only;

  • 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)

 

In the workers compensation setting, these statutes would apply:

 

  • O.C.G.A. § 34-9-13 (List of Dependents, Termination of Dependency);

  • O.C.G.A. § 34-6-265 (Death from causes other than injury; death resulting from injury; expenses of last sickness and burial; dependents; penalty where death caused by intentional act of employer; payment of benefits to board)

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