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What is a Wrongful Death?
According to Georgia state law, a wrongful death occurs when the death of another human is the result of a crime, criminal or other negligence, or defective property. A wrongful death claim can be initiated if the deceased would have had grounds for a personal injury case if he or she had survived.
Who Can File a Wrongful Death Claim?
Georgia law has determined who is eligible to file a wrongful death lawsuit based on the following order:
- The surviving spouse of the deceased
- The surviving child or children of the deceased if there is no spouse
- The surviving parent or parents of the deceased if there is no spouse or children
- The executor of the deceased’s estate if there is no spouse, children, or parents
Siblings, grandparents, and other relatives of the deceased cannot bring a claim. In instances where an executor files a wrongful death suit, the estate holds the recovered damages to benefit the decedent’s next of kin.
What is Negligence?
Wrongful death lawsuits are decided on the basis of negligence. Negligence is a legal theory regarding the failure of an individual or entity to exercise acceptable care toward another person. Four basic elements define negligence that must be established for a successful claim, and each aspect will be discussed in greater detail. The elements are:
- Duty
- Breach of duty
- Causation
- Damages
Duty
For a successful wrongful death claim, the family of the deceased must establish that a duty of reasonable care was owed by the liable party toward the deceased individual. Reasonable care typically refers to avoiding active harm to another individual and acting in a way that another person in a similar circumstance would also act.
For example, if a wrongful death occurs due to an intoxicated motorist, then the family of the deceased can establish that the motorist had a duty to operate their vehicle safely and soberly.
Breach of duty
After the duty of a plaintiff has been established, the defendant must also prove that the duty was breached. Continuing the intoxicated motorist example, a breach of duty would be driving while under the influence of alcohol.
Causation
The next element of negligence requires establishing that the breach of duty is the direct cause of the accident and injuries resulting in death. This can be satisfied by asking the question, “If the breach of duty had not occurred, then would the accident, injury, or death have occurred?”
Damages
The family of the deceased must prove that the deceased suffered specific damages to successfully receive damages following a wrongful death claim. At this point, an attorney can present evidence of unpaid medical debt, funeral costs, and unexpected financial losses incurred by the family.
What is Comparative Negligence?
Comparative negligence is the legal principle recognizing that multiple parties may share responsibility for an accident. It allocates fault among involved parties. Under Georgia’s comparative negligence laws, the percentage of fault will be determined and assigned to each party, impacting the amount of compensation awarded to the family of the deceased.
Under this doctrine, the deceased must bear less than 50% of the fault for the accident to be able to recover damages. If it is discovered that the deceased was 50% or more responsible for the accident resulting in his or her death, then the plaintiff’s eligibility for recovery of monetary damages will be forfeited.
Georgia’s comparative negligence laws also affect recovered damages by reducing the amount awarded based on the percentage of fault on behalf of the deceased party.
For example, if the deceased individual was found to be 20% responsible for causing an automobile accident involving an intoxicated motorist and is awarded $100,000, then the plaintiff will only be allowed to recover 80% of the total awarded damages or $80,000.
What Damages Can Be Recovered in a Wrongful Death Claim?
The State of Georgia recognizes two categories of damages that may be sought and awarded during a wrongful death claim. The first category seeks compensation for surviving family members for the value of the life of the decedent. This can include both tangible and intangible factors, such as:
- Lost wages and benefits
- Lost care
- Loss of companionship
The second category of damages intends to compensate the estate of the deceased for financial losses related to the death itself. This type of claim must be brought forth by the executor of the deceased’s estate and includes compensation for:
- Medical expenses related to the last illness or injury
- Funeral or burial expenses
- Other necessary expenses incurred due to the illness or injury of the deceased
What is the Statute of Limitations for a Wrongful Death Claim?
The statute of limitations or amount of time given to file a wrongful death claim in Georgia is typically two years from the date of the death. Lawsuits filed outside of this timeframe are almost always dismissed.
The timeframe can be temporarily paused or tolled if the death was the result of a crime. When a criminal case results from the same events as a wrongful death claim, then the statute of limitations for the wrongful death case is paused until the criminal proceedings conclude up to a maximum of six years.
Georgia law also allows the statute of limitations to be tolled for up to five years if the deceased’s estate has not been probated.
Do I Need an Attorney?
From a legal and procedural standpoint, wrongful death claims can be complicated. To ensure you and your loved ones are able to have a successful case, call Benton & Benton Attorneys at Law today at 866-927-4290 or fill out a contact form for a free consultation.
