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Atlanta Wrongful Death Attorneys
When you have lost a loved one in a tragic accident, calling an attorney is likely the last thing on your mind. You are coping with your loss and making final arrangements. Our team understands that you may feel paralyzed by grief. However, if your loved one’s death was caused by the negligent, careless, or willful action of another—such as in a DUI crash or doctor’s mistake—a wrongful death claim may be a way for you to seek some restitution and possibly find some peace. We can help.
What Is Wrongful Death?
In Georgia, wrongful death refers to the death of one person caused by the negligent, reckless, intentional, or criminal act of another person or entity. In other words, when a person or business behaves in a manner that causes the death of another person—even if it was not intentional—he or she can be held accountable for the losses incurred by the deceased’s family members.
Common Causes of Wrongful Death
There are an endless number of possible causes behind wrongful deaths, however the most common underlying reasons are:
- Motor Vehicle Accidents: Drivers are expected to operate their motor vehicles in a responsible and safe manner that prevents accidents, injuries, and death. However, every day in the United States, drivers speed, run red lights, ignore construction signs, fail to give pedestrians the proper right of way, and much more. If a driver's negligence or recklessness caused your loved one's death, you should consider a wrongful death suit.
- Criminal Acts: If a person commits criminal homicide, they can be held liable in both criminal and civil settings. In addition to a criminal conviction and sentence, the loved ones of the victim can also bring a civil wrongful death claim against the perpetrator. Because the burden of proof is lower in civil court, the accused does not have to be criminally convicted for you to bring a civil suit.
- Other personal injury cases: If your loved one is killed at work, by a negligent doctor, or by a product they had the right to believe was safe, you likely should file a wrongful death lawsuit. Workplace accidents, medical malpractice, and products liability cases are all common types of personal injury, and if that injury leads to wrongful death, you may be entitled to a settlement.
Who Can File a Wrongful Death Claim in Georgia?
Georgia law specifies who may bring a wrongful death claim to court on behalf of the deceased. The first person who can file a claim is the spouse of the deceased person. If there are also minor children involved, the surviving spouse must also represent the interests of the children in court. If there is no surviving spouse, the children may file on their own behalf. If the deceased did not leave behind a spouse or children, the claim may be brought by the following parties:
- The surviving parent of the deceased
- A personal representative of the deceased person's estate
If the personal representative brings the claim, any damages recovered are held by the estate for the benefit of the deceased person's next of kin.
Proving a Wrongful Death Case
The burden of proof in a Georgia wrongful death case is on the plaintiff to prove each element of the case by a preponderance of the evidence. This simply means a "greater weight" of evidence must be proven by the plaintiff than that which was proven by the opposing party. In mathematical terms, a preponderance of the evidence is 50 percent plus one.
In a wrongful death case caused by someone's negligent actions, the plaintiff must show:
- that the wrongdoer was negligent
- that this negligence caused the death
In cases where a criminal conviction has been obtained against a wrongful death defendant, evidence of the criminal conviction may be helpful in proving a wrongful death case. This is because a criminal proceeding has a higher burden of proof ("beyond a reasonable doubt" is the burden of proof in a criminal case).
Evidence must be secured to prove a wrongful death case. Witnesses must be identified and testimony preserved in the form of depositions, photographs need to be taken at the accident scene and perhaps of the decedent's injuries. It is imperative in a Georgia wrongful death case that an experienced attorney be hired promptly to preserve and itemize evidence.
If you have lost a loved one due to the negligence or recklessness of an at-fault party, you may have a wrongful death claim. Speaking with a wrongful death lawyer at Shane Smith Law enables you to understand what you are entitled to under Georgia Law.
Damages in a Georgia wrongful death claim are calculated as if the victim had survived. In other words, the court calculates damages as losses sustained by the victim. Though the wrongful death claim is filed by surviving family members, the court views the family as the victim's representatives.
Georgia's wrongful death decedent perspective means the victim's family cannot recover damages for their own emotional harm or for the support they would have otherwise received from the victim. Georgia courts award pain and suffering compensation based on what was experienced by the victim.
Georgia juries in wrongful death claims may consider the victim's:
- business situation
- activities and other facts relevant to the case
Jurors may also consider the victim's expected earnings during the duration of his working lifetime, his medical benefits or retirement/pension that would have been accrued, any expected inheritance he had not yet received and the victim's physical or mental suffering endured prior to death as a direct result of his injuries.
Additionally, a jury may decide whether punitive damages are relevant. These are financial awards that serve to punish the wrongful or negligent party for its behavior. Punitive damages may not be awarded in Georgia wrongful death cases to surviving family members. However, punitive damages have been awarded in Georgia wrongful death cases that were brought by an estate's administrator associated with the victim's accident-related pain and suffering.
What Is Georgia's Wrongful Death Statute of Limitations?
The statute of limitations in Georgia only allows you two years from the time of death to file a wrongful death claim. If you let that statute of limitations expire, you risk being ineligible for possible benefits recoverable in a wrongful death action.
In some cases, the statute of limitations can be extended. For instance, if you lost someone three years ago in what everyone believed to be an accident, but only just discovered that the real cause of death was murder, your statute of limitations could start on the day you discover the truth, rather than the date of death.
How Are Wrongful Death Settlements Divided?
- One-third to the surviving spouse
- The balance will be split evenly among the deceased’s and surviving spouse’s biological children. If the children are under 18 years old and are awarded up to $15,000 in a wrongful death claim, the child’s natural guardian may hold the funds without a bond.
- If a minor child receives more than $15,000 as part of the final wrongful death claim award, the natural guardian may still hold the excess property beyond the original $15,000 but the natural guardian must be approved by the probate court and have a bond posted. However, a bond may not be necessary if the final wrongful death claim settlement approves annuity payments going to the child once he or she reaches 18 years old and the natural guardian has no more than $15,000 of the child’s property.
Where are Wrongful Death Lawsuits Filed?
Wrongful death lawsuits are normally filed in the geographically appropriate State and Superior court in the Georgia courts of original trial jurisdiction. If, however, an administrator or executor of an estate must file a wrongful death lawsuit, it must also go through probate court.
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