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Gwinnett County Wrongful Death Lawyer

Gwinnett County Wrongful Death Lawyer

In Georgia, wrongful death claims may be brought by a surviving spouse, children, parent, or an adult representative of the deceased person.  Wrongful death claims are brought due to the negligent or reckless conduct of another.  At Hong & Sessions Law, LLC, we've brought wrongful death claims for tractor-trailer accidents, car accidents, bicycle accidents, and other accidents due to the negligence of another.  

Understanding Georgia's Wrongful Death Law & Recovering For The Death Of A Loved One

Georgia's wrongful death law allows certain people to seek the “'[f]ull value of the life of the decedent [this is the person killed in the accident], as shown by the evidence' means 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.” O.C.G.A. § 51-4-1 (1). Georgia's wrongful death law does not allow just anyone to seek recovery for the death of a person. We discuss who is entitled to seek compensation for the death of another below. In order for an eligible person to seek a recovery, they must show that the person's death was caused by "a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.” O.C.G.A. § 51-4-1 (2).

How do you bring a wrongful death case?

There are two different types of wrongful death claims in Georgia. There is statutory wrongful death claim and there are estate claims. Both are important and both allow for the recovery of damages that you and your family will undoubtedly want to recover for the loss of a loved one. 

Wrongful Death Claim (The Statutory Wrongful Death Claim Contained in Title 51 of the Georgia Code)

It is customary for most people and lawyers to look first to the statutory wrongful death claim when evaluating a potential wrongful death case. In the statutory wrongful death claim, the jury evaluates and decides the value of the deceased's life from the perspective of the deceased. 

The “full value of the life” has two parts.  First, it includes the intangible aspects of life. This intangible component includes the parts of life that we value most, like spending time with family and friends, relaxing, having fun, exercising, raising children, love, playing sports, daily activities, volunteering, or life milestones like graduating from high school or having children.

Second, the “full value of the life” also includes “tangible” value.  Also called the “economic” value of a life, this component refers to the economic value of the things the decedent did.  The tangible value of a life includes the money that the decedent would likely have earned throughout his or her life as well as the economic value of things like mowing the yard, washing the dishes, taking out the trash, driving children around, or caring for older relatives.

Estate Claim

The other claim, called the estate claim, permits the family of the decedent to recover for the pain and suffering of the decedent, any medical bills incurred before death, funeral expenses, and a few other items.  In Georgia, any claim for punitive damages must also be brought by the estate.  If the decedent had a will, then the administrator named in the will must bring the estate claim.  If the decedent did not have a will, then Georgia's laws of intestacy will determine who can bring the claim.  See O.C.G.A.§ 53-2-1 et seq.

Which surviving family member files a Georgia wrongful death case?

The wrongful death statute sets out strict rules who can bring the claim. If the deceased left a surviving spouse, then the surviving spouse holds the authority to bring the claim—he or she is the only person who can bring it.  If the deceased also left surviving children, then the surviving spouse will be the representative of the children and share with the children any damages award that is received. (Note that while the surviving spouse must share the damages award, the spouse can never receive less than one-third of the recovery, no matter how many children there are.)  If the deceased was divorced, then any surviving children of the deceased would hold the claim jointly. O.C.G.A § 51-4-2(d).

A technicality can arise if the deceased has children, but one of the decedent's children predeceased him.  In that case, the heirs of the child that predeceased the decedent—i.e., the decedent's grandchildren through the child that died first—would not receive their parent's portion.  Only when a decedent's child is an original claimant in a wrongful death action, and then dies during the pendency of the claim, can that claimant's children share in the recovery.  

When there is no surviving spouse and no surviving children, then the administrator or executor of the deceased's Estate may bring the action.  The damages recovered are held for the benefit of the next kin. O.C.G.A § 51-4-5.

(a) The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.

(b)(1) If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.

(2) If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.

(c) The surviving spouse may release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court, provided that such spouse shall hold the consideration for such release subject to subsection (d) of this Code section.

(d)(1) Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes, provided that any such recovery to which a minor child is entitled and which equals less than $15,000.00 shall be held by the natural guardian of the child, who shall hold and use such money for the benefit of the child and shall be accountable for same; and any such recovery to which a minor child is entitled and which equals $15,000.00 or more shall be held by a guardian of the property of such child.

(2) Notwithstanding paragraph (1) of this subsection, the surviving spouse shall receive no less than one-third of such recovery as such spouse's share.

(e) No recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent.

(f) In actions for recovery under this Code section, the fact that a child has been born out of wedlock shall be no bar to recovery.

O.C.G.A. § 51-4-2.

The right to recover for the homicide of a child shall be as provided in Code Section 19-7-1.

O.C.G.A. § 51-4-4.

(a) Until a child reaches the age of 18 or becomes emancipated, the child shall remain under the control of his or her parents, who are entitled to the child's services and the proceeds of the child's labor. In the event that a court has awarded custody of the child to one parent, only the parent who has custody of the child is entitled to the child's services and the proceeds of the child's labor.

(b) Parental power shall be lost by:

(1) Voluntary contract releasing the right to a third person;

(2) Consent to the adoption of the child by a third person;

(3) Failure to provide necessaries for the child or abandonment of the child;

(4) Consent to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time;

(5) Consent to the marriage of the child, who thus assumes inconsistent responsibilities;

(6) Cruel treatment of the child;

(7) A superior court order terminating parental rights in an adoption proceeding in accordance with Chapter 8 of this title; or

(8) A superior court order terminating parental rights of the legal father or the biological father who is not the legal father of the child in a petition for legitimation, a petition to establish paternity, a divorce proceeding, or a custody proceeding pursuant to this chapter or Chapter 5, 8, or 9 of this title, provided that such termination is in the best interest of such child; and provided, further, that this paragraph shall not apply to such termination when a child has been adopted or is conceived by artificial insemination as set forth in Code Section 19-7-21 or when an embryo is adopted as set forth in Article 2 of Chapter 8 of this title.

(b.1) Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

(c)(1) In every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child, either as provided in this Code section or as provided in Chapter 4 of Title 51.

(2) If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any, given such a right by this paragraph as follows:

(A) If the parents are living together and not divorced, the right shall be in the parents jointly;

(B) If either parent is deceased, the right shall be in the surviving parent; or

(C) If both parents are living but are divorced, separated, or living apart, the right shall be in both parents. However, if the parents are divorced, separated, or living apart and one parent refuses to proceed or cannot be located to proceed to recover for the wrongful death of a child, the other parent shall have the right to contract for representation on behalf of both parents, thereby binding both parents, and the right to proceed on behalf of both parents to recover for the homicide of the child with any ultimate recovery to be shared by the parents as provided in this subsection. Unless a motion is filed as provided in paragraph (6) of this subsection, such a judgment shall be divided equally between the parents by the judgment; and the share of an absent parent shall be held for such time, on such terms, and with such direction for payment if the absent parent is not found as the judgment directs. Payment of a judgment awarded to the parent or parents having the cause of action under this subparagraph or the execution of a release by a parent or parents having a cause of action under this subparagraph shall constitute a full and complete discharge of the judgment debtor or releasee. If, after two years from the date of any recovery, the share of an absent parent has not been paid to the absent parent, the other parent can petition the court for the funds, and the recovery, under appropriate court order, shall be paid over to the parent who initiated the recovery.

(3) The intent of this subsection is to provide a right of recovery in every case of the homicide of a child who does not leave a spouse or child. If, in any case, there is no right of action in a parent or parents under the above rules, the right of recovery shall be determined by Code Section 51-4-5.

(4) In this subsection the terms “homicide” and “full value of the life” shall have the meaning given them in Chapter 4 of Title 51.

(5) In actions for recovery, the fact that the child was born out of wedlock shall be no bar to recovery.

(6) For cases in which the parents of a deceased child are divorced, separated, or living apart, a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case. Where such a motion is filed, a judgment shall not be automatically divided. A postjudgment hearing shall be conducted by the judge at which each parent shall have the opportunity to be heard and to produce evidence regarding that parent's relationship with the deceased child. The judge shall fairly determine the percentage of the judgment to be awarded to each parent. In making such a determination, the judge shall consider each parent's relationship with the deceased child, including permanent custody, control, and support, as well as any other factors found to be pertinent. The judge's decision shall not be disturbed absent an abuse of discretion.

O.C.G.A. § 19-7-1.

(a) When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin. In any such case the amount of the recovery shall be the full value of the life of the decedent.

(b) When death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person.

O.C.G.A. § 51-4-5.

What “damages” can a jury impose in a wrongful death case?

The value of human life is viewed and valued from the eyes of the deceased. In awarding damages for wrongful death, the jury is asked to consider the value of the person's life to himself or herself.  Learning about who the person was and what made the person's life special to him or her is what leads to an amount.  Photographs, videos, and stories help tell the story.  The amount of the verdict is up to the “enlightened conscience of the jury.”

The Estate of the deceased also holds the claim for any medical bills, conscious pain and suffering prior to death, and funeral expenses. The Estate holds the claim for the suffering before death.  Additionally, the Estate holds a claim for “fright, shock, and terror” for the fear the decedent when he or she knew that death was imminent. Usually, the deceased's will identifies the Executor.  If there is no will, then the laws of intestacy will be used to determine who can the claim.

How long does a family have to bring a wrongful death claim under the statute of limitations?

The statute limitations is usually two years from the date of the deceased's death. O.C.G.A § 9-3-33.  Depending on the circumstances, however, that time could be shorter or longer.

What should a family do after the loss of a loved one?

The first thing any family should do after losing a loved family member to wrongful death is to grieve properly.  There will be a host of emotions that come from losing a loved family member due to the negligent, or worse, willful actions of some other person or company.  And while it is very important that surviving family members properly mourn the loss of a loved parent or child, it is also important that the family gathers as much evidence as possible as soon as possible after the deceased's wrongful death.  The reason: if you're not gathering the evidence, the defendant probably is.

Take for example a tractor-trailer crash in which a truck kills the driver of another car.  As soon as that crash happens, the driver of the tractor-trailer is calling his company.  And once that company gets a call advising them of the crash, they are calling an insurance defense law firm and national insurance company who will rush defense experts out to the scene to gather the evidence.  They'll use that evidence to build a defense aimed at avoiding responsibility.

Evidence from the tractor-trailer could show what happened in the seconds before the crash.  The tractor-trailer that caused the crash may have a “black box”—technically called an event data recorder, or “EDR”—that gathers information about the truck's speed, braking, and time driven.  But if the family's lawyer doesn't act quickly to preserve the EDR data, an irresponsible trucking company might delete the data.  Other evidence that should be gathered includes skid marks on the road and debris that came off vehicles in the wreck.  Before long, the road will re-open and cars will travel across the site of the crash.  Rain can wash away debris or erase tracks left on the shoulder of the road.

In almost any kind of wrongful death case, it is important to move quickly.  For instance, the surveillance video that shows a crime has been committed might get recorded over every week or ten days, or a key witness might move or change his phone number.  That is why it is so important to gather the evidence, and do it quickly.

Of course mourning the loss of a loved family member takes priority.  That is the most important thing.  But consulting with a knowledgeable attorney who shows empathy and skill in handling wrongful deaths probably comes second.  The attorney you hire should know what to do, and how to do it.  He or she should give you the freedom to focus on re-building your life while the law firm focuses on the case.  Filing a lawsuit against the responsible party is almost always necessary. While a settlement may be reached, the goal should always be preparing the case for a trial.  Not only is that the best way to be ready for trial, but it is also the best way to make the defendant want to settle.

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