The death of a family member is always a troubling time, especially when the death is unexpected and due to a personal injury. When a death is due to the acts or omissions of another, civil liability under “wrongful death” laws can result, with each state recognizing wrongful death claims in their own unique way. To bring a wrongful death action in the state of Georgia, several inquiries must be made concerning the proper party or parties to bring the action, the correct court or courts in which to file the action and whether to file single or multiple actions. For instance, it may be that the executor or administrator should bring an action in probate court on behalf of the estate while a separate suit should be brought in State Court or Superior Court against the party or parties legally and financially liable for the death.
A wrongful death could be the result of a myriad of causes, including death caused by the negligent, reckless (extremely careless) or intentional acts of another such as in:
- Catastrophic Personal Injury, such as traumatic brain injury, spinal injuries, burn injuries, quadriplegia and paraplegia, amputation injury, radiation injury;
- Truck, Auto, Commercial or Other Vehicle Accidents, including airplanes, boats, bicycles, pedestrians;
- Professional Malpractice;
- Premises Liability;
- Product Liability from defects in a consumer product;
- A Crime Committed because of Inadequate Security;
- Drunk driving or drug related accidents;
- Elder abuse or Nursing Home Liability;
- Child Injuries;
- Work Related Accidents.
Charles Scholle can counsel you in how to resolve these issues and assist you in bringing justice for the loss of your family member. For nearly two decades, Gwinnett County Georgia injury lawyer Charles Scholle has represented clients and their families in wrongful death, catastrophic injury, personal injury and estate cases. His Atlanta, Georgia personal injury law firm, Scholle Law, serves clients through a main office located in Duluth, Georgia in Gwinnett County as well as from offices in Atlanta, Buckhead, Decatur and the Perimeter.
Top Things to Know About Wrongful Death in Georgia
Prior to initiating a wrongful death action against a defendant, you need to ask, among other things:
- How the state defines “Wrongful Death?”
- Whether the death of your loved one was the result of negligent or intentional acts or omissions?
- Who is the proper party or parties to make a claim for wrongful death for a loved one?
- What types of damages can you claim in a wrongful death action?
- How are those damages distributed among the heirs of the loved one?
- In what Georgia court the action should be filed?
- Who should file the action (the beneficiaries of the estate or the executor or personal representative)?
- Whether the actions can be filed in one single action or in multiple actions?
The Law Office of Charles Scholle can counsel you in resolving these issues and assisting you in bringing justice to the loss of your family member.
What is Georgia’s Wrongful Death Law?
Definition: “Wrongful death” is a civil claim brought against a party (person, business or government entity) for causing the death of a person.
A Wrongful Death claim may be brought against a person, corporation or a government entity (provided the government entity waives its sovereign immunity). The State of Georgia recognizes a wrongful death cause of action in Chapter 4 of Title 51 (Torts) of the Official Code Annotated of Georgia, O.C.G.A. The related statutes to wrongful death in the State of Georgia include:
- O.C.G.A. § 51-4-1 Definitions; “Full Value of the Life”; “Homicide”
- 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 decedent”
- O.C.G.A. § 19-7-1 “Parental power; Recovery for homicide of child”
If you are in a situation where you believe you have a wrongful death claim, contact the Law Office of Charles Scholle to counsel you in bringing justice to the loss of your family member.
Distinguished From Homicide & Criminal Law
As mentioned above, “wrongful death” is a civil claim brought by a person (administrator of the estate, for example) against a party on behalf of the person that died, legally known as the ”Decedent.” The party against whom a wrongful death action is brought could be another person, business entity or a government entity. Wrongful death by another person is a type of homicide. “Homicide” is generally defined as the unlawful killing of a human being by another and therefore this includes criminal deaths, such as vehicular homicide, and wrongful death.
Criminal death is governed by a state’s criminal code. The criminal code of Georgia can be found in Title 16 (Crimes and Offenses) of the O.C.G.A. Criminal death includes murder, such as felony murder, and manslaughter, voluntary and involuntary. O.C.G.A. § 16-5-1; 16-5-2; 16-5-3. Criminal death is prosecuted by the state, usually by a county district attorney, with the penalty being life imprisonment or death.
There are several differences between criminal death and wrongful death in the state of Georgia:
- Unlike criminal death prosecution, a district attorney’s office will not pursue a wrongful death claim on behalf of the decedent as wrongful death is a civil claim;
- Even if the district attorney’s office decides to not pursue a criminal action against an individual for a criminal death, a civil wrongful death action can be pursued by the wrongful death beneficiaries;
- If the district attorney’s office does pursue a criminal action against an individual, a civil wrongful death action may also be pursued, regardless of whether or not the defendant in the case was found guilty or not guilty; moreover, issues of double jeopardy will not apply;
- The criminal code of Georgia also does not apply to a wrongful death action; instead Chapter 4 of Title 51 (Torts) of O.C.G.A. applies;
- There will not be a guilty or not guilty verdict in a wrongful death action but rather a liable or not liable action, as it is a civil claim;
- There is no jail time or imprisonment for a wrongful death action in the State of Georgia but rather money damages may be awarded if the responsible party (person, business or government entity) is found liable.
History of Wrongful Death in Georgia
Wrongful death claims in the State of Georgia have a long history. Originally, there was no wrongful death claim available in Georgia, as all claims for injuries ended with the passing of the decedent. During the mid-1860’s, wrongful death became an action that the estate of the decedent could seek with only the estate’s legal representative (e.g. an executor) being vested with the authority to bring the claim. Subsequent changes by the Georgia legislature modified the wrongful death statutes to permit the widow of her husband to seek a wrongful death claim. Eventually, children were vested with the ability to bring the claim (minor children first, then adult children later added to the statute), then parents (first the mother was added, than eventually the father) being vested with the right file a claim on behalf of their decedent child.
Not only was deciding who had a vested right to make a wrongful death claim a significant change to the original wrongful death statutes in Georgia, but also other important changes included what types of actions could give rise to a wrongful death claim and what types of damages the family of the decedent could recover. Founded on Lord Campbell’s Act of imperial Britain, Georgia’s wrongful death action initially provided for only death caused by the wrongful act, neglect or default of another. Although the British law may have been foundational, it lacked several material parts of the wrongful death law as we know it today, including a determination of which wrongful or negligent acts could give rise to a wrongful death claim, which family members could bring the claim and whether damages for loss of financial support were permitted. Due to the lack of a common law wrongful death claim, legislation was strictly construed, meaning the code was interpreted exactly as it read literally, without material court interpretation. This meant that if the State of Georgia’s wrongful death action said that only compensatory damages were available, punitive damages were, by omission, not available. Further, this strict construction provided that only the full value of the life of the decedent could be awarded, but not compensatory damages or punitive damages.
If you are in a situation where you believe you have a wrongful death claim, contact the Law Office of Charles Scholle to counsel you in bringing justice to the loss of your family member.
Who can Bring a Wrongful Death Claim?
One of the most important questions to consider before initiating a wrongful death claim in Georgia is to determine who can bring a wrongful death claim. Usually brought by a close relative, each state has specific statutes vesting standing in certain family members who were typically in the closest relationship to the decedent, such as surviving spouses, children, parents or siblings. Georgia statutes are very specific with respect to the three individuals (or groups of individuals) who may bring a wrongful death claim. These include, in order of priority under the Georgia statute, the surviving spouse, the children and the parents. To illustrate, if there is not a surviving spouse, then a child can bring the claim; and if there is not a surviving spouse or surviving child, then the parents of the decedent may bring the wrongful death claim in Georgia.
Further issues arise if there is no surviving spouse, child or parent to bring the wrongful death claim on behalf of the decedent, as Georgia’s wrongful death statutes do not permit a sibling, step- or half-sibling, grandparent, aunt or uncle or cousins to bring a wrongful death claim on behalf of the decedent. The Georgia legislature resolved this issue, permitting the Court-appointed Administrator (if the decedent died without a will), or the executor (if the decedent passed with a will), of the estate to bring a wrongful death claim on behalf of the decedent.
If you are in the situation where the decedent did not leave behind a surviving spouse, surviving child or parent and you believe you have a wrongful death claim, contact the Law Office of Charles Scholle to counsel you in bringing justice to the loss of your family member.
What Damages can be Awarded for a Wrongful Death Claim?
State statutes dictate which types of damages are awarded for a wrongful death. Some states permit compensatory damages as a form of restitution and to compensate for the loss of the family member, as well as compensation for any medical expenses and funeral expenses incurred. Georgia’s statutes permit three categories of damages to be awarded. The first category under the wrongful death statute is for the “full value of the life of the decedent, as shown by the evidence.” The second category is for the administrator or executor of the estate, who may seek damages relating to funeral, burial and other estate-related charges. The third category relates to a “survival” claim and includes medical expenses, pain and suffering of the decedent and other damages during the period between the injury and the death. Interest may be added to the damages awarded, calculated back to the date of death. Georgia’s 2 year wrongful death statute of limitations will begin to run on the date of the death of the decedent. The Law Office of Charles Scholle can provide you legal advice on the damages to seek in a wrongful death action. Contact us at your convenience for a free consultation.
First Level of Damages “Full Value of the Life of the Decedent, as Shown by the Evidence”
The “full value of the life of the decedent, as shown by the evidence”, is defined in Georgia statute O.C.G.A. § 51-4-1(1) as “the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived.” As this statute is the only direction from the Georgia legislature on how to calculate the “full value of life” and is quite vague, judicial interpretation from Georgia courts is necessary to give direction on how to calculate this level of damages. Georgia courts have suggested the ‘full value of life’ has two components:
- Economic component;
- Non-economic, or “intangibles”, component.
The Economic Component of the ‘Full Value of Life’
For the economic component of the ‘full value of life’, the jury in a wrongful death action should consider the decedent’s probable future earnings and services. This economic component is a carefully calculated amount based on, among other things, age, health, life expectancy, income at the time of death, earning potential, expected inheritances and expected income from retirements, pensions, social security benefits and disability benefits. This sum must then be reduced to present cash value. The economic component includes loss of support and loss of services; however, it does not deduct any of the necessary or personal expenses of the decedent had he or she lived, including taxes. As per the Georgia statute, no deduction shall be made for any of the necessary or personal expenses of the decedent had he or she lived, including taxes. Expert opinion can be presented to the jury to show the “full value of life” of a decedent; however, a jury is not bound by an expert opinion. These amounts must be shown by evidence and the Law Office of Charles Scholle can assist you in gathering and proving this evidence.
Recovering Under the Economic Component for an Unemployed Decedent
The decedent does not have to be working at the time of death to recover damages for the economic component of the “full value of life”. Georgia permits unemployed decedents, such as students, those laid-off, those not able to work due to sickness or disability, those incarcerated or those that do not work outside of the home, as well as children (see the “Wrongful Death of a Child in Georgia” section below), to still recover under this standard. It can be difficult to gather and present evidence of the “full value of life” of the decedent when the decedent was not working outside of the home. For an adult not working at the time of his or her death or working inside the home, Georgia courts have permitted several factors to be considered in calculating the “full value of life of the decedent” including age and health, the decedent’s profession and environment, habits of the decedent, aspirations in business and infirmity. Although gathering and presenting evidence of the “full value of life” of a decedent that is a temporary or permanently unemployed adult or an adult not working outside of the home can be difficult, having the right attorney to assist you in gathering and presenting this evidence can make it possible. The Law Office of Charles Scholle is available to assist you in gathering and presenting this evidence. Contact us at your convenience for a free consultation.
Recovery Under the Economic Component for Homemaker or Stay-At-Home Decedent
For a stay-at-home decedent providing domestic services to the family, or to a senior, sick or disabled family member, Georgia courts permit recovery in a wrongful death action for the loss of the services to the household and loss of the care of the children, among other domestic services, that the family would have received from the decedent over his or her lifetime. Along the same lines as an unemployed decedent, it can be difficult to gather and present evidence of the ”full value of life” of a stay-at-home decedent providing domestic services to the family, or to a senior, sick or disabled family member. The same factors considered for an unemployed decedent as stated above are taken into consideration for a homemaker or stay-at-home decedent, including age and health, the habits of the decedent and aspirations of the family. The Law Office of Charles Scholle is available to assist you in gathering and presenting evidence to show the full value of the life of your lost homemaker or stay at home family worker.
The Non-Economic Component of the “Full Value of Life”
As death is the ultimate injury one can suffer, Georgia courts have maintained the approach that a wrongful death recovery should never be for less than the injured party would recovery for permanent and complete disability, and the non-economic component of the “full value of life” provides for this. The non-economic component, or the “intangibles”, of the ‘full value of life’ is calculated from the perspective of the decedent, if he or she had lived, instead of the value of the decedent’s life according to his or her survivors. The non-economic component compensates the decedent for the loss of his or her life, loss of his or her enjoyment in living and the enjoyment of family and friendships. Supporting evidence of the noneconomic component of one’s life is often provided by testimony by the decedent’s family and friends who can testify to the decedent’s character, community and athletic activities, family relationships, religious beliefs and other interests. On the other hand, Georgia courts have held that the following information is not relevant to determining the value of life from the decedent’s perspective: speculation on drug or alcohol use, criminal history of a family member or members of the decedent, evidence of marital or family issues or speculation on other evidence that may be prejudicial to the decedent rather than probative to the calculation of damages. The Law Office of Charles Scholle can assist you in gathering and proving this evidence, as well as ensuring these items of irrelevant evidence according to Georgia courts are not allowed in.
Recovery Under the Non-Economic Component for a Child, Disabled, Elderly or Infirmed Decedent
Georgia courts recognize the ‘full value of life’ even if the decedent was a child, disabled, elderly or infirm at the time of the wrongful death. Such a decedent may have little to no income to speak of, but the non-economic component of the decedent is often very significant to the survivors. The measure of damages for a wrongful death recovery for a child, disabled, elderly or infirm decedent is “the enlightened conscience of impartial jurors”. The Law Office of Charles Scholle is available to assist you in appealing to “the enlightened conscience of impartial jurors” to show the full value of the life of your child, disabled, elderly or infirm decedent.
Expenses Associated With the Death Causing Injury and Pre-Death Pain & Suffering Damages
Other civil damages recoverable in connection with the death of a loved one include those relating to the injury causing the death, including funeral and burial expenses, medical expenses incurred for treating the death causing injury, as well as compensation for medical expenses, pain and suffering and other damages incurred between the time of the decedent’s injury and death. O.C.G.A. § 51-4-5(b) permits action to seek recovery of funeral expenses and medical expenses incurred by the decedent. The claim for funeral expenses and medical expenses for treating the death causing injury must be in a separate claim. The Law Office of Charles Scholle can ensure justice is served by counseling you in the appropriate way to seek recovery of the funeral expenses and medical expenses incurred for treating the death causing injury.
Another category of damages is not permitted to be included in the wrongful death action but could be filed in a separate claim by the personal representative under a “survival” statute. This separate claim for the medical expenses and pain and suffering by the decedent incurred between the time of the injury and the death is known as the “survival claim” because had the decedent survived, the decedent himself or herself could have sought these damages in a personal injury claim; therefore, the personal representative or the executor of the estate of the decedent may file the “survival claim”. This requirement, that only the personal representative or the executor of the estate may bring the “survival claim” means two separate actions – one for the wrongful death claim and one for the “survival claim” – may be necessary. The Law Office of Charles Scholle can counsel you in the appropriate way to seek recovery for Georgia survival damages on your loved one’s behalf.
As with all general damages awards, the measure of damages for recovery of pain and suffering by the decedent incurred between the time of the injury and the death is “the enlightened conscience of impartial jurors.” To recover for pain and suffering for a decedent, the personal representative of the estate must present some evidence that there was pain and suffering prior to death. There are two other requirements to recover for pre-death pain and suffering by the estate. One is that the jury verdict clearly state what part of the award is for the wrongful death claim and what part is for the “survival claim”. The other requirement is that an appointed executor or personal representative for the estate must represent the estate of the decedent in the action for pre-death pain and suffering recovery. The Law Office of Charles Scholle can ensure justice is served by counseling you in the appropriate way to seek recovery for pain and suffering of your loved one.
Some states also allow punitive damages to be awarded in a wrongful death claim. Georgia’s wrongful death laws do not mention punitive damages, and therefore Georgia courts have strictly construed the statute to not permit any punitive damages to be awarded in a wrongful death claim. With that said, Georgia Courts have permitted punitive damages in a survival action where there has been an extreme indifference to the value of human life and where the tort action survives the death of the decedent under the Georgia survival statute. Due to the complexity of the laws in regards to the types of damages for a wrongful death claim and a survival action, it is extremely important that a surviving spouse, child, parent or the executor of an estate that believes to have a wrongful death claim contact the Law Office of Charles Scholle to counsel you in bringing justice to the loss of your family member.
Challenges to Wrongful Death Damages Awards
Although courts are hesitant to second-guess a jury verdict, especially when it was for the pre-death pain and suffering, wrongful death damages awards can be challenged if excessive or inadequate to the purpose of the damages awarded. Wrongful death damages awards have two purposes, compensation and deterrence. As mentioned above, the compensation function is to remunerate for the loss of the support and services of the loved one, the father or mother, the spouse, the child or grandparent. The civil penalty for deterrence is to prevent the action that caused the wrongful death from recurring. If the awarded wrongful death damages exceed, or are below, the measure of compensation or deterrence, the wrongful death damages award can be challenged. If the challenge is granted, a new trial will be granted to review the damages award(s); the new trial will not review all of the evidence again or the details regarding the liability of the defendant.
How are Wrongful Death Damages Distributed?
Damages awarded or settlement proceeds obtained in a wrongful death action or claim are distributed to the wrongful death beneficiaries, including, if applicable, a spouse, children, the parents of the decedent, or if none of the above exist or survive, to the representative of the estate. Therefore, if a spouse survives, without children of the decedent also surviving, then the damages shall be distributed exclusively to the spouse. If the spouse and children both survive the decedent, the damages shall be distributed equally among them; provided, however, that the spouse shall never receive less than a one-third share per Georgia statute. If there is not a surviving spouse, the surviving children will share equally the damages proceeds; provided, however, if the surviving child is a minor, Georgia requires recovery of less than $15,000 to be held by the child’s natural guardian for the benefit of the child, but if the recovery is $15,000 or more it must be held by a guardian of the property of the child. If there is not a surviving spouse or surviving children, the parents are next of kin and will share the damages proceeds (subject to paternity or maternity or support or adoption issues). If there is no spouse, child or parent surviving the decedent, the recovered amount shall be recovered by the estate and distributed accordingly. The Law Office of Charles Scholle can counsel you bringing a wrongful death claim, distributing any damages awarded to the rightful parties or in preparation of your estate, the Law Office of Charles Scholle can also assist you in your estate planning.
Wrongful Death of a Child in Georgia
There are two relevant Georgia statutes pertaining to a wrongful death action of a minor or adult child in Georgia. These are O.C.G.A. § 51-4-4, entitled “Homicide of a child,” and O.C.G.A. § 19-7-1, entitled, “Parental power; Recovery for homicide of child”, with the latter being the primary statute with respect to the wrongful death of a minor in Georgia. O.C.G.A. § 19-7-1 ensures there will always be a party with standing to bring a wrongful death action on the behalf of the minor in the state of Georgia, whether it is the spouse, a child of the minor or a parent; if there is not a surviving spouse, child of the minor or parent, then executor or administrator of the minor’s estate can bring the action for the benefit of the minor’s next of kin. If the decedent is an adult child, the parent(s) of the adult child may bring the action if there is not a surviving spouse or a surviving child of the adult. The fact that a child was born out of wedlock will not preclude a parent’s right of recovery in a wrongful death action. O.C.G.A. § 19-7-1(c)(5).
The manner in which parents may bring a claim for the wrongful death of their child, minor or adult, depends on whether or not the parents are married, divorced or separated. If the parents are married and living together, the right of recovery for the wrongful death of their minor or adult child shall be in the parents jointly. O.C.G.A. §19-7-1(c)(2)(A). If one of the parents has predeceased the minor or adult child, the right of recovery shall be in the surviving parent. O.C.G.A. §19-7-1(c)(2)(B). If both parents are living but are divorced, separated or living apart, the right of recovery shall be in both parents; however, if one parent refuses to proceed with a wrongful death action or cannot be located to proceed with a wrongful death action and the parents are living but are divorced, separated or living apart, the other parent may proceed with the right of recovery for the wrongful death of the minor or adult child by contracting for legal representation which will bind both parents. O.C.G.A. §19-7-1(c)(2)(C). Any recovery by one parent if the other parent refuses to proceed or cannot be located as mentioned in the preceding sentence will still be shared by both parents, but not necessarily equally if a proper motion is filed requesting the trial judge to apportion fairly any recovery. If a parent has not been present in the child’s life, including providing support to the child, the damages recovered in a wrongful death action may be apportioned by the judge.
Gathering and presenting evidence for the full value of life of the decedent can be especially difficult in the case of the wrongful death of a child as the child has little to no earning potential to prove. In this situation, factors of age and life expectancy can be considered, as well as health, mental aptitude, mental and physical development and family circumstances.[NB1] Georgia does not recognize an action for wrongful birth or wrongful life. Both of these actions, are types of malpractice claims permitted in some states where relief is sought for negligence or intentional treatment or advice that did not give the expecting parents the option to abort the fetus to avoid the birth of an impaired child. Georgia courts have permitted claims for wrongful death of an unborn fetus if the fetus was “quick” or “quickening” meaning that the fetus was moving or stirring in the womb. If “quick”, the fetus could qualify as a child under O.C.G.A. § 51-4-4, “Homicide of a child”. Wrongful death of an unborn fetus could be caused by the recklessness or negligence of another where the mother is injured and either both, the mother and fetus die, or the mother survives but due to the injuries sustained, the fetus does not survive. If you are in the situation where you believe you have a wrongful death claim on behalf of your adult or minor child, contact the Law Office of Charles Scholle to counsel you in bringing justice for the loss of your family member.