Georgia Personal Injury Law Center > FAQ > Wrongful Death

WHAT IS A WRONGFUL DEATH CLAIM?

A wrongful death lawsuit alleges that the decedent was killed as a result of the negligence (or other liability) on the part of the defendant(s), and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant's conduct.

Under "common law" (the general legal principles passed from England to the United States over hundreds of years) this type of claim did not exist. It was reasoned that the claim died with the victim, and the surviving family members could not claim damages from the person who caused the victim's death. To correct this injustice, the individual states have passed "wrongful death statutes" over the years.

If you believe you have a valid claim for the wrongful death of a family member, you should consult an attorney from your local area regarding the requirements for your particular jurisdiction.

WHAT IF THE PERSON DIES BEFORE A LAWSUIT IS BROUGHT?

In general, a "survival statute" preserves a victim's cause of action against a defendant after the victim dies. The estate or surviving dependents assume the victim's cause of action against the defendant until the matter is settled or tried.

In contrast, a wrongful death claim is a new cause of action which arises from the victim's death, and is brought by the surviving beneficiaries or dependents of the deceased victim.

For example, Victim, (married with two children) is injured in a severe automobile accident, caused by the negligence of Defendant. Victim is hospitalized and sues Defendant. Before Victim's case is heard, Victim dies as a result of the injuries sustained in the auto accident. Victim's surviving spouse may "step in" and pursue Victim's claim against defendant. The surviving spouse and children may also be able to pursue a separate wrongful death claim against Defendant for their damages incurred in Victim's death. While these claims are separate, they are frequently consolidated together by the court before trial.

WHAT ARE THE ELEMENTS OF A WRONGFUL DEATH CLAIM ?

Generally,

1. the death was caused, in whole or part, by the conduct of defendant

2. the defendant was negligent, or strictly liable, for victim's death

3. there is a surviving spouse, children, beneficiaries or dependents and

4. monetary damages have resulted from the victim's death

WHO CAN FILE A WRONGFUL DEATH CLAIM?

Generally immediate family members (i.e. spouses, children and parents) can pursue a wrongful death claim (although minors until 18 years of age may require a "guardian ad litem" to represent their interests in court).

WHEN MUST A LAWSUIT FOR WRONGFUL DEATH BE FILED ?

A claim, even a valid claim, may be denied if it is filed after the statute of limitation has run. If you believe that you may have a valid claim for wrongful death, it is important that you speak with a qualified attorney at your earliest opportunity to preserve your rights. In addition to protecting your claim in court, early action may also help to preserve evidence, or locate witnesses, that you may need to win your case.

WHAT KINDS OF DAMAGES ARE RECOVERABLE IN A WRONGFUL DEATH CLAIM ?

The following damages may be recovered in a wrongful death action:

1. Immediate expenses associated with the death (medical & funeral):

2. Loss of victim's anticipated earnings in the future until time of retirement or death;

3. Loss of benefits caused by the victim's death (pension, medical coverage, etc.);

4. Loss of inheritance caused by the untimely death;

5. Pain and suffering, or mental anguish to the survivors;

6. Loss of care, protection, companionship to the survivors;

7. General damages; and

8. Punitive damages.

Some of the listed damages may be hard to prove and thus be considered too speculative by the court. As a result, they may be struck or restricted. Punitive damages may require a higher level of proof (see below).

Plaintiffs may be able to recover interest calculated from the time of death, the time the damages were incurred, or from the time of the filing of the lawsuit. Finally, most of the damages for future loss (such as the victim's anticipated earnings) will be reduced to "present value" (discussed below).

WHO CANNOT BE SUED?

A member of a family cannot sue another member for wrongful death.

HOW IS THE LAWYER REIMBURSED?

In a typical wrongful death action, the lawyer agrees to take a percentage of the monetary recovery he or she ultimately obtains for you as a result of negotiation or trial. The lawyer gets nothing unless he or she wins. This is called a contingency fee.

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