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Stokes & Kopitsky, P.A.
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What To Do If a Loved One Died Due to Someone’s Negligence

Am I Entitled to File a Wrongful Death Action?

The parties who can file a wrongful death personal injury claim in Georgia is statutorily determined.  There is a strict order as to who can file the action.

  • Surviving Spouse — The surviving spouse of the deceased person has the right to make a wrongful death claim. Should there be surviving children apart from the spouse, then the latter is required to share any recovered award with any children of the deceased.
  • Children — The children will share together with the living spouse of the deceased.
  • Parents — Should there be no living spouse or children, then there is a presumption that the deceased’s parents will share in the award.
  • Estate — An estate can also initiate a wrongful death action in the absence of a surviving spouse or child.

Contact Atlanta’s top wrongful death attorneys at Stokes & Kopitksy.  We will fight for you!

There are two separate claims that can be asserted in a wrongful death action. The first is an estate claim; this pertains to the type of recovery and compensation and has for its basis the pain and suffering as well as the funeral and medical expenses of the deceased. The second type of claim is for the full value of the life of the victim; this extends beyond the death of the deceased person and is determined by the jury.

Evidence must be presented in order to prove the “full value of the life of the deceased” since the statutes of Georgia pertain to this as the principal basis for determining the damages for the wrongful death of a person. There is little guidance, however, on how to arrive at or how to quantify the standard of “full value of the life of the deceased”. The specific statutory definition is contained in O.C.G.A. § 51-4-1(1) which provides: “Full value of the life of the deceased, as shown by the evidence” means the full value of the life of the deceased without deducting for any necessary or personal expenses of the deceased had he/she lived.

Based on the rulings of the Georgia appellate courts, “full value of the life of the deceased” entails an economic amount that is based on the expected value of the deceased person’s income ability or capacity to deliver goods and services over a reasonable estimate of his life expectancy, and secondly, a non-economic component to account for the unquantifiable intangible aspects of the life of the deceased.

“Deceased” is the actual term used to address the victim of a wrongful death, while the wrongdoer is addressed as the “tortfeasor” in the action. There is a misconception that a civil action for wrongful death only occurs for deaths which are caused by negligence and recklessness, and that intentional killings are outside the ambit of the action. This is not true, and survivors can initiate a wrongful death claim, and can be compensated for both negligent and intentional wrongful deaths.

Negligent acts pertain to foreseeable actions that might have been prevented or stopped altogether had the tortfeasor acted with reasonable care and diligence. On the other hand, intentional killings are criminal in nature and are prosecuted separately by the state of Georgia, apart from the wrongful death civil action that can be filed separately and independently.

In wrongful death actions based on negligence, the survivors have the burden of proof to establish by the quantum of evidence required (which is preponderance of evidence in civil actions) that: (1) the tortfeasor had the duty or was required to exercise diligence to protect the deceased from the death; (2) the tortfeasor failed to exercise this duty or failed to observe the required standard of care;  (3) the actions of the tortfeasor were the reason or the “proximate cause” of the death; and (4) the deceased died as a result.

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