If you've suffered serious injuries or lost a loved one, an Atlanta injury lawyer can help answer your questions on how to win your personal injury claim in a Georgia personal injury court!
At S. Burke Law we are here to help give answers to these important questions. Our Frequently Asked Question database covers the common questions you may have regarding what to do after a serious accident, how to file a claim in personal injury court, and tips on how to win your personal injury claim. When researching information on the legal process following a serious accident you want legitimate advice from a source you can trust.
When you’ve suffered serious losses and damages from an accident due to the negligence of another you aren’t alone. An Atlanta injury lawyer from our office is always available to answer additional questions not addressed on our page. Contact us for a FREE consultation and get the answers you need to seek compensation for your losses!
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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.
What Constitutes a Wrongful Death Lawsuit?
A wrongful death lawsuit is a suit brought by the personal representative of a person killed by the criminal or negligent conduct of another person. The lawsuit is brought to benefit family members of the deceased person.
Filing a Lawsuit When Another's Conduct Kills Your Loved One
If the negligent or criminal conduct of another killed your spouse, parent or child, or a defective product caused the death of your loved one, you may be eligible to recover compensation for related damages.
What Constitutes a Wrongful Death Lawsuit?
The conduct that would form the basis of a personal injury lawsuit had the person survived will form the basis of a wrongful death action.
- Negligence: You can show that a party’s negligence caused the decedent's death. You must show the defendant owed the decedent a duty of care, the defendant did not meet that duty, the defendant caused the decedent's death, and the beneficiaries experienced damages.
- Medical malpractice: You can show a health care provider did not meet the standard of care required of the medical community and that the conduct caused the decedent's death.
Preserving the Evidence in a Wrongful Death Action
Contact a lawyer soon after the accident, so the evidence is properly preserved. What can happen after the accident?
- A damaged vehicle is towed to a junkyard, and its condition is altered.
- Skid marks on the road may fade.
- Witnesses may move, or their memories may fade.
Wrongful Death Action to Recover the Value of the Decedent's Life
If your loved one died in an accident caused by someone's criminal or negligent conduct, you can file a wrongful death suit to recover damages related to the decedent’s death.
Who Files the Wrongful Death Action
- The decedent's surviving spouse
- If the decedent does not have a surviving spouse, the decedent's children
- If the decedent does not have a surviving spouse or child, the decedent's parents
- If the decedent does not have a surviving spouse, child, or parent, the personal representative of the decedent's estate
Recovery for Lost Wages of the Decedent
If you bring a wrongful death suit on behalf of your parent, spouse or child, you can recover for the value of the decedent's lost wages, including what your parent, spouse, or child could have earned during his or her lifetime. Your lawyer at S. Burke Law will gather evidence about the decedent's work history and may work with an economist to put a value on the decedent's life.
- If the decedent is an older adult, we may look at the decedent's current employment and determine how much he or she would likely have earned during his or her lifetime.
- If the decedent is a young adult, for example, a student, we may gather evidence about how much a person on the same career path would earn during his or her lifetime.
Other Recoverable Damages in a Wrongful Death Case
Other types of damages for which you may recover compensation in a wrongful death case include:
- Loss of companionship
- Loss of consortium
- Funeral expenses
- Medical expenses
Get Help With a Wrongful Death Action to Recover Financial Losses
If you lost a loved one because of somebody else’s negligence or criminal act, contact attorney Sheryl Burke at S. Burke Law. We can help you take action to fight for compensation your family needs and deserves.
Call us today at 404-842-7838 for a free consultation.
Can Parents Sue for Wrongful Death?
When the criminal or negligent conduct of another party causes the death of their child, parents can file a wrongful death action. However, the parents are permitted to file a wrongful death case only if the child has no surviving spouse or children.
A Wrongful Death Claim to Recover the Value of the Decedent's Life
If a child has a surviving spouse or child, the spouse or child brings the suit. The parents of a child may file a wrongful death claim to recover the value of their child's life if the child has no surviving spouse or children.
Which Parent Files a Wrongful Death Claim for the Value of the Child's Life
Generally, both parents bring the wrongful death action jointly. The joint right to bring the suit exists even if the parents are divorced, separated or living apart.
An exception applies when one of the parents refuses to bring the suit or cannot be located. The other party can bring the suit on behalf of both parents. If one parent dies, the other parent has the sole right to bring the wrongful death action.
A parent can lose his or her right to file a wrongful death suit for a child’s death. Reasons for the loss of this right include:
- Releasing his or her rights to a third person
- Consent to the child's adoption
- Abandoning the child
- Engaging in cruel treatment of the child
Value of a Child Wrongful Death Action
A lawyer will hire an expert to help place a value on the deceased child's life. An economist can help estimate the amount of money the child would have earned during his or her life. The parent can also recover for the loss of companionship with the child. Funeral expense and medical expenses may be recoverable as well.
Division of the Recovery Between the Parents
The recovery goes equally to both parents if the parents are married and living together. In the case of divorced parents, separated parents, or parents living apart, either parent may file a motion to apportion the recovery fairly. At a hearing, each party can present evidence about his or her relationship with the child. A judge will consider the relevant factors, such as who had primary custody of the child, and determine a fair apportionment of the recovery.
A Wrongful Death Claim to Recover the Decedent's Financial Losses
A personal representative of the child's estate may file a wrongful death claim to recover the deceased child's financial losses. Who is the personal representative of the child's estate?
- If the child has a will, the personal representative is the person designated as executor in the will. The executor may be a parent, but if the child is an adult, the will may name a spouse, a child or another third person as the executor.
- If the child does not have a will, which may be the case with a young child, the court appoints an administrator who serves as the personal representative. This most likely will be the child's parent(s).
The wrongful death recovery goes into the estate and is distributed to beneficiaries per the terms of the child’s will or according to the laws of intestacy. If the child dies without a spouse or a child, the assets of the estate pass to the child's parents.
When to File the Wrongful Death Claim
Generally, you have two years after a child's death to file a wrongful death claim per the Georgia statute of limitations. Contact a lawyer as soon as possible so she can begin investigating the circumstances of the claim.
S. Burke Law will gather evidence to prove liability for the child's death and present evidence to establish the value of the case.
Call S. Burke Law at 404-842-7838 for a free consultation about your wrongful death case.
Who Can You Sue for Wrongful Death?
Who you can sue for wrongful death depends on the circumstances of your loved one’s accident. Like all personal injury cases, wrongful death cases require proving negligence and liability. The person or party you can sue depends on where the event occurred, if negligence contributed to the incident, and who was liable for the death.
Reasons For Wrongful Death
Wrongful death can occur for a variety of reasons. Those reasons include:
- Medical malpractice
- Workplace accidents
- Criminal activity
- Automobile accidents
- Truck Accidents
- Product liability
- Bicycle accidents
Losing a loved one creates a difficult time for all, particularly if you believe negligence contributed to their passing. There are likely several questions racing through your mind after such a sudden and traumatic event.
Proving Liability in Wrongful Death Claims
Like we mentioned above, proving liability is the key to filing and eventually winning a wrongful death claim. Primarily, you must prove two things:
- The liable party caused the death.
- The deceased party would have had just cause to file a personal injury claim had they survived their injuries.
Once you have established who would be liable for the wrongful death and that the deceased would have cause to file a personal injury claim, you can begin determining whether negligence contributed to the wrongful death. Establishing liability in personal injury cases requires determining the following:
- Establishing a duty of care
- Establishing a breach of the duty
- Proving causation
Establishing A Duty of Care in Wrongful Death
A duty of care is essentially how a reasonable person should act in a given situation. A duty of care requires people and organizations to not engage in activities which put the safety of others at risk. A duty of care varies depending on where the accident occurred and the events that took place.
For example, if your loved one was driving at the time of their accident, then there are certain duties the other drivers must adhere to while navigating the roads. Driving within the speed limit and stopping at red lights qualifies as a duty. Another example of a duty of care is the safety measures an employer must maintain while you work. They must ensure that all equipment, hardware, and the property itself is safe while you complete your workday.
Breach of Duty in Wrongful Death
When you know what a person or party’s duty of care was to the deceased, you can investigate if there was a breach of duty. A breach of duty is anything in direct conflict with how a reasonable person would act to ensure safety.
If your loved one died because another driver ran a red light while speeding, this represents a breach of duty on the part of that driver. Moreover, if an employer knowingly allowed you to use defective equipment or allowed other dangerous items in a work area, this is a breach of duty too.
Proving Causation in Wrongful Death
Proving causation is key in determining who you can sue for wrongful death. There may be instances when a person or party is responsible for your accident but not directly responsible for the death of the deceased. For instance, it is possible that the initial car that sped and ran a red light caused the accident but is also not responsible for the death of your loved one. An example of this could be if another vehicle hit the car after the initial impact from the first vehicle or if the victim’s car had defective airbags.
Ultimately, determining who you can sue for wrongful death relies on the ability to draw a direct connection between the cause of the accident and the death. And S. Burke Law dedicates itself to determining where that connection is and what you should receive in damages.
Call an Atlanta Wrongful Death Attorney
Collecting damages after personal injury cases is among the top concerns for every personal injury claim. But they take on greater importance in wrongful death cases. While money can never replace your loved one, those damages may be essential to your own survival if your loved one was the primary breadwinner for your family.
We encourage you to reach out to S. Burke Law. Our firm has represented families in several wrongful death cases. We can examine the details of your case and help answer your questions. S. Burke Law fights on your behalf to help collect the damages you require following this unfortunate accident. We begin determining who you can sue for wrongful death with a free consultation.Call us at 404-842-7838 to set yours up today.
Who Can File a Wrongful Death Suit in Georgia?
In most instances, only close relatives of the deceased have the right to file wrongful death suits. Typically, it is spouses, children and parents who file wrongful death lawsuits. However, if there is no next of kin, the estate of the deceased can also file wrongful death suits.
Losing a loved one is never easy, especially if they died suddenly due to an accident completely out of their control. S. Burke Law understands how trying a time this is for everyone who knows your loved one. And while no amount of money can replace the relationship you had with your lost family member, receiving compensation is often something owed to you, particularly if the deceased was the primary breadwinner in the family.
Parties That May Collect Wrongful Death Claims
There are several different parties that may collect wrongful death claims including:
- A surviving spouse
- A surviving child
- Surviving parents
- The estate
It is important to note there is a time limit for filing a wrongful death claim.
Surviving Spouses Filing Wrongful Death Claims
Generally, surviving spouses have the priority as wrongful death beneficiaries. A wrongful death beneficiary is a person who holds the right to file wrongful death cases. Assuming the spouse and the deceased did not have any children, the spouse would collect the entire wrongful death settlement.
However, if the deceased did have children, they split the money between them. In this case, the spouse receives one-third of the settlement, and the children would split the remaining settlement.
Surviving Children Filing Wrongful Death Claims
If there is no spouse, but the deceased left behind children, the right to file a wrongful death claim falls to the children. Assuming they win the claim, the surviving children split the award equally between them.
Surviving Parents in Wrongful Death Claims
If the deceased has no surviving spouse or children, the right to file a wrongful death claim falls to the parents. This does not change if the parents were not living together. Both parents split the settlement whether they are dating, married, divorced, or separated.
However, there are a few cases in which one of two surviving parents may file a claim and act as the sole wrongful death beneficiary. If one parent refuses to follow through in filing a personal injury claim, the other parent can file a wrongful death claim without him or her. Also, if one of the parents failed to provide for the deceased child, or totally abandoned them, that person may be unable to file a wrongful death claim.
The Estate in Wrongful Death Claims
If there are no surviving spouses, children, or parents, the estate can file a wrongful death suit in Georgia. Whoever is the estate’s administrator or executor would file the claim. The beneficiaries distribute the proceeds from the settlement. Georgia’s probate law determines how those funds are distributed.
The Statute of Limitations to File Wrongful Death Claims
Like most personal injury cases, wrongful death claims have a statute of limitations. Georgia’s state laws dictate the wrongful death claim must be within two years of the negligent act which caused your loved one’s wrongful death. That said, this does not mean your case resolves within that two-year timeframe. Simply, you must file the claim at the two-year mark.
Occasionally, there are instances when the clock on your two-year time limit stops running. This is not very common, but it does occur when there is a criminal case related to your wrongful death claim. If there is a criminal case dealing with the same circumstances as your wrongful death claim, the clock stops on your wrongful death claim until the criminal case concludes.
Call a Georgia Wrongful Death Attorney
Determining who can file a wrongful death suit in Georgia is the first step in collecting the damages you deserve for your loss. And speaking to a Georgia wrongful death attorney can help you in that process. S. Burke Law has represented many people in wrongful death cases.
We pursue a variety of damages in those claims which includes:
- Medical expenses
- Lost wages and benefits
- Funeral expenses
- Loss of companionship
- Pain and suffering
How Much is a Wrongful Death Suit Worth?
There is no set or average amount a wrongful death suit is worth. The amount you may be able to collect in a settlement depends on a variety of factors. The influencing factors include the age of the deceased, their job, who was responsible for the death, and the type of damages the wrongful death beneficiaries suffered.
You can never prepare for a loved one passing away. But their death may truly be staggering if they died as the result of negligence. S. Burke Law understands how difficult a time this is, and how difficult the decision to file a claim is.
Economic Damages in a Wrongful Death Suit
Economic damages are a primary form of compensation S. Burke Law seeks on your behalf following a wrongful death. These are the damages that cause you direct financial losses. In most cases, economic damages are easily quantifiable because they relate to new expenses or direct financial losses. But, in some cases, they may be a projection of future losses.
Lost wages are fairly straightforward to calculate in typical personal injury cases. Usually, it is just a matter of determining the time the victim missed at work and multiplying it by the victim’s salary. But wrongful death suits are not as simple because your loved one can never return to work. In a wrongful death claim, S. Burke Law will look at the following to determine the value of a wrongful death suit:
- The age and overall health of the victim at the time of death (an older person who was close to retirement will likely recover much less than a person who died at age 40)
- The victim’s earning potential, including education, personal accomplishments, and current career (a CEO will likely earn more over time than a teacher)
- The victim’s character and overall intelligence
- The parental status of the deceased. If the deceased had surviving children, this factors in as well.
Ultimately, the amount the next of kin or estate receives for lost wages depends on how much the family depended on the deceased financially, and how much the person would have contributed in the future.
In this case, we can discuss your case with economic experts to determine how much your loved one would have made over time with inflation, as well as what they missed out on in regard to bonuses, promotions, pensions, and other benefits.
Medical bills vary depending on the circumstances of the accident. For example, if your loved one had an extended stay at the hospital following an accident, then the responsible party may owe you significantly more in medical expenses than if your loved one died shortly after the accident. Medical expenses our firm seeks on your behalf may include:
- Ambulance costs
- Hospital stay fees
- Costs for emergency medical attention
- Specialist fees
Funeral expenses are probably the most straightforward of the economic damages S. Burke Law seeks on your behalf. While funerals are expensive affairs, if you receive an award for a wrongful death, the cost of the event is typically part of the damages.
Noneconomic Damages in Wrongful Death Lawsuits
What you can recover depends on who the deceased was to you. For example, spouses may be entitled to loss of consortium and companionship benefits and the loss of a parent-child relationship. You might be able to collect pain and suffering on behalf of your loved one as well.
Compensation on Behalf of Your Loved One
You might be able to collect pain and suffering on behalf of your loved one as well.
For example, if your loved one spent a significant amount of time in the hospital as your family sought treatment for their injuries, they likely experienced significant discomfort throughout that process. In such cases, we might allege that experienced considerable pain and suffering before death.
Call an Atlanta Wrongful Death Attorney
While the life of a loved one cannot be quantified into dollars—and there is no set amount for how much a wrongful death suit is worth—collecting a wrongful death settlement is often one of the first steps in picking up the pieces after an accident. If you or someone you care about recently suffered a loss in the family, we encourage you to call S. Burke Law. Call us at 404-842-7838 for your free consultation today.
What kind of settlement can I expect if I file a wrongful death claim?
This question can have many different answers that will generally depend on the deceased persons' surviving family members. If the deceased contributed significantly to the household, the estate may be able to recover for future lost earnings the deceased would have received during their normal life expectancy. The claim can also recover damages based on the pre-death suffering experienced by the victim if they did not die right away.
If you are filing a wrongful death claim as a surving spouse your settlement may include amounts for loss of consortium (loss of care , love and sex), loss of future financial contributions that were expected from the deceased. If you had children with the deceased, damages can also include loss of parent-child relationship.
It can be extremely difficult to determine how much a settlement should be in any case and it may be necessary to bring in experts that can help calculate the damages.
What is the difference between survival action and wrongful death?
A wrongful death claim is filed by the family of the deceased and is meant to compensate them for their losses due to the death of their loved one. A survival action claim is filed by the estate of the deceased to help compensate for their expenses from their injury leading up to their death.
A wrongful death claim is typically filed when the victim dies immediately from an act of negligence by another party that results in a fatal injury. The damages sought in these claims typically includes compensation for the loss of financial support if the deceased were an intregal part of the family's income, the pain and suffering the family experiences from the loss their member and funeral as well as burial expenses.
A survival action claim is filed when a victim is injured by another's negligence but does not die from the injuries until sometime later. The compensation received in this claim will seek to cover the medical expenses incurred during that time between accident and death. A survival cliam seeks to prevent the responsible party from escaping liability because the accident did not become fatal until after the accident.
Every fatal personal injury case is unique and not all cases will qualify as a wrongful death claim or survival action claim, while some may be eligible for both types of claims. Your Atlanta wrongful death attorney can help explain your situation and determine your options for compensation.