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Wrongful Death—Ask the Answer Man

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.

 

  • What are the characteristics of a wrongful death claim?

 

There are four elements that must be proved in a wrongful death action:

1) The proximate cause of the victim's death was the defendant's actions;

2) The defendant's actions were negligent (someone does not show the same care that a reasonably prudent person would under similar circumstances), reckless, intentional, or his actions were committed under circumstances where the law would hold him strictly liable for the death (strict liability applies where a relationship exists between the defendant and the victim where the defendant is understood to be legally responsible);

3) The plaintiff has a right to sue for damages;

4) The wrongful death caused financial damages.

 

 

  • Who may bring a wrongful death action as specified in Georgia statutes?

 

According to Section 51-4-2 of the Official Code of Georgia Annotated (O.C.G.A.), there is a statutory order determining who can bring the wrongful death claim for the value of the victim's life. If the victim had a spouse, then the surviving spouse holds the claim and only he or she may bring it. If there is a surviving spouse and the victim also had children then the spouse must act as a representative of the children and share with the children any damages award. Regardless of the number of surviving children the spouse can never receive less than one-third of the damages award. If the victim was divorced then any surviving children would hold the claim jointly.

O.C.G.A. Sec. 19-7-1 dictates that if there is no surviving spouse and there are no surviving children then the wrongful death claim would pass to the victim's parents. If the parents are still married then the claim is held jointly between them. If there is only one surviving parent then the right remains exclusively with that parent. If the parents are divorced then the right is still in both of them; however, proof of abandonment, severed relations with the victim, or failure to pay child support on the part of one of the parents can remove or reduce that parent's right to recover.

According to O.C.G.A. Sec. 51-4-5, when there is no surviving spouse, no surviving children and no surviving parents then the administrator or executor of the victim's estate may bring a wrongful death action. Any damages recovered would be held for the benefit of the next of kin.

 

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