How Do You Prove Wrongful Death?

To prove a wrongful death in Georgia, you must show that the negligent or criminal act (e.g., assault and battery) by another party caused a person's death.

Acts That Can Result in a Wrongful Death Action

To recover for a wrongful death, you must show that the decedent could have filed a lawsuit had he or she survived the accident resulting in his or her death.

Proving Negligence Caused the Decedent's Death

Negligence can be the basis of liability in a wrongful death suit. What must you prove?

  • The person owed a duty.
  • The person failed to meet that duty.
  • The person's failure to meet his or her duty caused an accident.
  • The accident caused injuries, resulting in death.

Examples of negligent conduct that result in a death include the following:

Proving Other Conduct Caused a Decedent's Death

A criminal act, such as a fatal shooting, can form the basis of a wrongful death claim. The government can prosecute and convict the defendant, but the purpose of the wrongful death civil action is to recover compensation for the loss of the decedent's life[JR1] .

Wrongful Death Claims in Georgia

Georgia has two types of wrongful death claims:

  • A traditional wrongful death claim
  • An estate's claim

Bringing a Traditional Wrongful Death Claim in Georgia

A traditional wrongful death claim seeks to recover the value of the decedent's life.

Who can file a traditional wrongful death claim?

  • The decedent's surviving spouse
  • If there is no surviving spouse, the decedent's children
  • If there are no surviving spouse or children, the decedent's parents
  • If there is no surviving spouse, child or parent, and there is no will, the executor or the administrator of the estate

Damages in a traditional wrongful death claim include the following:

  • Lost earnings: Factors used to determine what the decedent would have earned include age and the decedent's earnings at the time of death.
  • Loss of companionship: You can recover compensation for the loss of the companionship of the decedent, for example, the spouse or child.

The compensation recovered in a traditional wrongful death claim goes to the surviving spouse and children equally, but the spouse must receive at least one-third of the recovery.

Estate's Claim for Wrongful Death

The personal representative of the decedent's estate may bring a wrongful death claim on behalf of the estate. Damages in an estate's wrongful death claim include the following:

  • The decedent's medical expenses
  • Funeral and burial expenses
  • The decedent's pain and suffering: For example, the decedent does not die immediately and lives for a period of time before passing away.

The amount recovered by the decedent's personal representative goes into the decedent's estate.

  • The personal representative pays the decedent's debts before distributing the funds of the estate.
  • The funds pass according to the decedent's will or according to Georgia's intestacy laws if there is no will. Under the intestacy laws, the funds from the estate go to the decedent's next of kin, usually the surviving spouse and children.

When to File a Wrongful Death Action

Generally, you must file a wrongful death action in Georgia within two years of the decedent's death. You should not wait until the time is about to expire to contact a lawyer. The collection of evidence is paramount in building a case for a wrongful death claim. Therefore, getting an early start on the case could be critical:

  • In a trucking accident, the electronic control box (similar to an airplane's "black box") needs to be recovered immediately.
  • In a traffic accident, skid marks on the road can fate.
  • In any accident, memories can fade and witnesses can move.

If you have questions about how you prove wrongful death in Georgia, call S. Burke Law at 404-842-7838.