Tragically, a person may lose their life as a result of someone else’s actions. Those who are left behind, such as the surviving spouse, can file a wrongful death action because the victim is not there to fight for justice. If the surviving spouse files a lawsuit and they are successful, they can recover the full value of the life of the decedent.
If you lost a loved one due to someone’s negligent or intentional wrongdoing, you should contact our skilled Columbus wrongful death lawyers at Joe Durham Jr., P.C. We will work to help you hold the person at fault accountable and get the compensation you deserve. Call today for a free consultation with a personal injury attorney.
How Is Wrongful Death Defined In Georgia?
In Georgia, wrongful death is defined as an untimely death that occurs as a result of recklessness, negligent, intentional, or criminal actions of another person or entity. Negligence refers to the failure to execute reasonable care when one must do so. For example, a nursing home facility could be held liable if a resident died as a result of neglect.
Usually, a civil claim for wrongful death could arise if the actions of the entity or individual caused the unnatural death of the victim. Some of the legal grounds for wrongful death in Georgia include drunk driving, medical malpractice, contaminated food, and intentional homicide.
Also, in case the deceased bought unsafe prescription drugs from the defendant, and started having complications soon after taking the drugs, the defendant’s actions may be regarded as unlawful. If this happened with the defendant’s knowledge, then it will be concluded that they wanted to hurt or kill the decedent.
Who Is Qualified To File A Wrongful Death Claim?
Georgia code 51-4-2 outlines who can file a wrongful death lawsuit. The deceased’s surviving spouse can file a wrongful death lawsuit. If the serving spouse and deceased had children together, then the lawsuit will also represent the interest of the children. Note that the remaining spouse can only file the lawsuit on behalf of the children if they are below 18 years.
If the victim of the wrongful death didn’t have a family, then the surviving parents may bring the wrongful death suit against the defendant.
On the other hand, if the wrongful death victim didn’t have any surviving parents, children, or a spouse, then a representative of that deceased estate may also bring the wrongful suit to court. In this particular instance, if the lawsuit is successful, then all proceeds received as compensation will be held by the deceased’s estate.
The acquired proceeds will then be distributed to the surviving next of kin. It is also good to note that the spouse should not receive less than one-third of the total recovery. The spouse will also have to share the proceeds with the children. In case the victim had written a will and had indicated that nothing should be awarded to the children, then the spouse should keep the full compensation.
What Types Of Damages Are Recoverable?
According to Georgia law, all the damages which include monetary compensation should be directly related to the injury that resulted in the death. Any damages that the surviving family might have incurred, including pain and suffering, are not considered compensable.
Usually, there are three main categories of damages that one may seek in Georgia’s wrongful death lawsuit.
- The first one is the funeral expenses and all the medical costs that resulted from the injury or death of the deceased.
- The other category that warrants damages is the pain and suffering that the deceased incurred before their death.
- Lastly, the surviving family is compensated an amount equal to the full value of the life of the decedent.
Before, it was difficult to determine how best to measure the value of the life of the deceased. However, the Georgia appellate courts have determined that the full value of life will be determined by various components, namely economic and non-economic. The economic component is derived by computing the present value of the deceased’s future earnings and services that they would have earned if they had lived for more years.
When calculating economic loss, a Columbus wrongful death lawyer will have to consider how young or old the deceased was at the time of death, their income at the time of death as well as their occupation. The non-economic component includes all the intangible elements that are not easily proven but can be determined by the jury. As much as the values may be subjective, it is the role of the wrongful death attorney to show the court the real value of the damages.
Can The Surviving Family File For Punitive Damages?
When it comes to punitive damages, only the jury can decide whether the damages are relevant. Punitive damages refer to financial awards that are given to punish the defendant for their negligence or recklessness.
Usually, these damages are not awarded in wrongful death cases in Georgia. However, there are cases when punitive damages have been awarded in wrongful death cases. This includes wrongful death cases that have been brought by an estate administrator, that were directly associated with the deceased pain and suffering during the accident. Most juries consider punitive damages if the conduct of the defendant was malicious, and they showed callous disregard for the deceased’s safety.
If the defendant acted in a negligent manner that injured the victim, and the victim happened to live for some time before succumbing to their death, then a punitive claim may be included. If the deceased’s death was immediate, then you can only have a wrongful death claim and no basis for punitive damages.
How Is Negligence Proved In A Wrongful Death Case?
We always insist that if you want your wrongful death case to be successful, your lawyer needs to prove that there was negligence on the part of the defendant. The lawyer must be able to convince the jury that the negligence of the defendant caused the death of the victim. Also, you need to prove that the deceased took precautions by seeking care afterward, to mitigate the actions of the defendant.
When proving negligence, it is always good to have the evidence. If possible, the surviving family should try to obtain substantial evidence to show that there was negligence on the part of the defendant. Some of this evidence include accident scene photos, medical photos, and any remnants of a defective product that the victim may have taken.
There are four key elements to building a winnable wrongful death case:
Duty of Care
The plaintiff must convince the court that the defendant was supposed to show a duty of care during the time they were with the deceased. For example, it is a doctor’s responsibility to provide patients with a certain standard of care.
Breach of Duty of Care
When you can prove that the defendant owed the deceased duty of care, but failed to do so, then it is clear that the defendant was negligent. The plaintiff must also show how the defendant failed to carry out the duty of care. In case you were with the deceased at the time the action took place, you will be required to explain to the court what you witnessed and whether the defendant played their role as expected.
Your lawyer must be able to show that the death was caused by the actions or the inaction of the defendant. Without proving the defendant’s negligence cause your loved one’s death, it becomes difficult to convince the court that the defendant should be held liable.
Your lawyer will need to show the court how the breach resulted in damages, and in this case, the damage is the death of your loved one.
If you want to file a wrongful death lawsuit, you should seek help from a skilled and experienced wrongful death attorney. Hiring a reputable lawyer who specializes in wrongful death is advisable because they are skilled at gathering all the relevant evidence and convincing the court of law that the defendant is liable for the death of the victim.
How Do You Start A Wrongful Death Claim In Georgia?
If the victim has died as a result of the negligence of another party, it is always good to hire a Columbus wrongful death lawyer as soon as possible. You want to start the lawsuit process early enough when all the evidence is fresh. As much as Georgia’s statute of limitations will limit the time for bringing the wrongful death case to court to two years, it would be best if you did it early enough. Also, note that if you fail to file the claim within the two-year limit, then your right to present the claim is denied.
You also have to note that the two-year limit stops running in some situations, especially if there is another criminal case in court that deals with similar. Usually, when there are other criminal cases with the same events as the wrongful death cases, you will find that the wrongful death lawsuit is suspended to a later time. Therefore, the two-year statute of limitations starts all over again after the criminal case is completed.
If the deceased person’s estate is not probated, the state of Georgia allows the statute of limitations in wrongful death cases to be tolled for up to five years. This means that the wrongful death claim may even take up to seven years to be filed.
What Is The Difference Between Wrongful Death Claims And Estate Claims?
In the estate claim, you will find that the decedent’s estate will try to recover expenses such as burial and funeral costs. They also account for pain and suffering for the time the decadent lived, shortly before their last breath. Since estate claims will involve pain and suffering damages, we have to factor in the challenges involved in calculating these types of damages.
If you live in Georgia, note that the estate also brings any claims for punitive damages. However, if the decedent had written a will, then the person who is named in the will should be the one to bring the estate claim. If the decedent didn’t have any will, the law will then determine who will bring the claim.
When it comes to wrongful death claims, the claim will have to be filed by the surviving family demanding for recovery of the deceased’s full value of life. Usually, the first person who has the right to file the claim is the surviving spouse, followed by the deceased’s parents if they didn’t have a spouse or children. In this case, the estate will not make a claim.
Schedule a Free Consultation With Our Columbus Wrongful Death Lawyers
The unexpected death of a loved one usually brings about financial and emotional havoc in the lives of those left behind. This is especially so if the deceased had many dependents to take care of. If someone passes on due to another person’s negligence, Georgia law allows the serving spouse, or the deceased’s children or parents if there is no serving spouse, to file a wrongful death claim.
If your loved one passed on due to another person’s careless actions, don’t hesitate to contact our team at Joe Durham Jr., P.C. We will represent all your interests and fight to ensure that you get compensated for all the damages incurred.