Go to navigation Go to content
Toll-Free: (888) 927-6955
Phone: (770) 487-8999
Law Offices of Shane Smith

Contact Us

Get help now! Please fill out the quick contact form below for a fast and free case consultation. We will contact you within 24 hours!

Wrongful Death—Ask the Answer Man, Part II—Statute of Limitations, Proof

Wrongful death refers to a claim by a plaintiff (not the victim) who seeks to recover damages for the unjust death of another caused by someone's negligent, reckless or intentional acts. There are no specific guidelines that dictate the means of death; however, wrongful death tort claims frequently occur in several circumstances:

  • Medical malpractice, especially errors in surgery, diagnosis and/or prescriptions;
  • Product defects;
  • Automobile accidents, including truck and pedestrian accidents;
  • Criminal acts such as murder, physical abuse or neglect.

Clayton County wrongful death attorney Shane Smith represents families who have lost loved ones in auto accidents, truck accidents, DUI accidents, pedestrian accidents or serious premises liability accidents.

  • Is there a statute of limitations to pursue a wrongful death claim?

Georgia's wrongful death statute is complicated and establishes varying statutes of limitations. Time starts tolling (the beginning of the period for calculating the statute of limitations) depending on certain facts in a case. The statute of limitations can be as short as one year or as long as eight years.

In a wrongful death claim against a public entity such as a municipality a notice of claim must be filed within six months of the victim's death. Wrongful death lawsuits against individuals must be filed within two years of the victim's date of the death.

 

Failure to meet the guidelines in the statute of limitations typically results in the case being barred (prohibited). A successful claim is aided by the expertise of an experienced Clayton County wrongful death attorney.

 

 

  • What must be proved in a wrongful death claim?

 

The burden of proof in a wrongful death case is on the plaintiff (the party bringing the claim). Each element alleged must be proved by a preponderance of the evidence (there is a greater likelihood that the allegation is true than that it is false). If the wrongful death claim involves allegations of negligence it must be shown that the party at fault breached a duty of care owed to the victim (negligence) and the negligence caused the victim's death.

 

In a wrongful death case both the actual cause of death and the proximate cause of death are considered. Actual cause is the factor without which the death could not have occurred. Proximate cause involves the other factors that led to the death. A person may be held liable only if the proximate cause involved factors that a reasonable person could foresee as leading to an accident.

 

If the State has obtained a criminal conviction against the party at fault (such as in cases of homicide or manslaughter) then evidence of the criminal conviction could be used to prove a wrongful death case.

Evidence needed to prove a wrongful death case varies but it will likely be necessary to secure witness testimony, obtain police reports, medical records and accident scene photographs. A successful claim is aided by the expertise of an experienced Clayton County wrongful death attorney.

The victim's personal items can also be presented to the jury to aid in determining damages. Georgia statute dictates that the jury should look not only to the victim's future earnings as an economic value but also to the intangible element and impact the victim had while living. The intangible element of a person's life is often valued by a jury at a figure greater than that which is awarded from the economic perspective (future earnings). Photos, videos, letters, projects and stories from the victim's life are all admissible as evidence. These will illustrate the victim's quality of life for the jury's consideration; the jury's award is unlimited.

 

You should hire an experienced Clayton County wrongful death attorney if you believe your loved one was killed due to someone else's negligence. Call the Law Offices of Shane Smith for a free consultation.


Shane Smith
Advocate for the Seriously Injured in Georgia