Your Rights Under Law
Do I Have a Wrongful Death Case?
The world can be cruel and unfair and there are certainly wrongs that the justice system cannot correct but Georgia law does provide for the punishment of negligent acts that cause death. Wrongful death cases can arise after a motor vehicle collusion on the roads, due to a dangerous condition on a property or from medical malpractice. These cases each are wrongful death cases, but they can also fall into subcategories like premises liability and malpractice.Basic Elements of Wrongful Death Case in Georgia
What are the basic elements of a wrongful death claim in Georgia? That the person died in whole or in part as the result of the failure of another person to honor a duty to the person who died and that the failure caused the death. In law school, this is taught and the elements of "duty", "breach" and "causation."
An example would be; a tractor trailer driver fails to check their mirrors and changes lanes knocking a passenger car off the road. The duty is to check your mirrors and blind spots, the failure is not doing that and the failure caused the crash and the death of the vehicle occupants.What Family Member Can File a Wrongful Death Claim or Lawsuit?
There are two claims in Georgia, the statutory wrongful death claim (usually the primary one for the value of the life of the person) and the Estate Claim (which holds the pain and suffering, medical expense and punitive damages claim)
The correct person or persons to bring the statutory case is laid out by specific laws. If married, the deceased person’s spouse is entitled to control the case and share proceeds with any children of the decedent. If there is no spouse then the next parties to control the case are any children of the deceased. O.C.G.A. §51-4-2 If the deceased has not left behind a spouse or children, then the parents of the deceased control the case and will receive the proceeds of the claim. O.C.G.A. §19-7-1.
Finally if there are none of these claimants available, then the court may appoint someone to file a claim on behalf of the deceased person’s “next of kin.” Only at this point would any siblings, etc. be able to claim the award, according to O.C.G.A. §51-4-5.
To recap; who controls a wrongful death case in Georgia?
The wife, then kids, then parents, then the Court appointed party.Now that you know who has the right to bring a case and what is required for a case, let's examine some of the basic steps that you should take.Hire a Lawyer as Soon as Possible
While it is understandably difficult to think about legal matters when you are grieving, you really need to hire a lawyer as soon as you can, especially if your case involves time-sensitive evidence, limited insurance policies, or more than one injured person. Keep in mind, for example video tapes from business security cameras that may have been facing the roadway can be overwritten in mere days.
When we get hired on a case at the very first meeting we compile list of the urgent evidence that needs to be locked down immediately and identify insurance sources that may be in jeopardy. If appropriate, we will inspect the vehicles involved and potentially download the black box from the cars to secure vital evidence. In some cases, we will send collision experts to the scene of the accident to collect, analyze, and take photographs of important evidence. At our firm, we also quickly send a letter to any at-fault parties reminding them not to allow any pieces of evidence to go “missing”, which allows us to hold them accountable if they try to do anything dishonest.
In a case we handled, for example, a college student died in a DUI accident that involved three different insurance policies, four different injuries, and two separate wrongful death claims. How? Unfortunately, in this case two different drunk drivers crashed into each other, causing them to swerve erratically and kill the student.
Although this was clearly a terrible incident, a close relative of the deceased student decided to hire our firm within just one week of the accident. Wasting no time, we immediately contacted the insurance companies involved, and our swift response meant that we were the first claimants to file with the insurance company. You may be surprised to learn that insurance companies in Georgia can decide whom to pay in wrongful death cases—they are not obligated to be “fair” to the different parties involved. Because of this, acting quickly like we did can result in hundreds of thousands of dollars more in damages for our clients.
However, while you definitely want to act quickly, you also need to take enough time to make sure you have found the right lawyer to represent you.
In order to make the right choice, we recommend interviewing at least 3 different lawyers in person before deciding whom to hire. During these interviews, you should always ask the lawyer directly if he or she has experience filing and litigating wrongful death claims. Ask what the results of these cases were, and follow up by inquiring about the lawyer’s current wrongful death cases in progress. It is also a good idea to ask to talk with the lawyer’s clients who have gone through your experience. Why be so careful? Juries sometimes award huge amounts of money in wrongful death cases, and you want make sure that your lawyer is experienced and qualified, not simply interested in the money.
Although it is a lawyer’s job to lead a case and provide expert legal advice, you still need to understand the basic tenets of Georgia wrongful death law before moving forward with any particular lawyer. In our state, there are two possible claims that you can file—“statutory wrongful death” claims that can be brought forth by family members, and claims of the estate of the deceased.
This is one of the tougher questions to answer. In attempting to pin down the “value of life” in a wrongful death case, a person’s economic productivity and personal life are handled differently. Georgia is a rare state in terms of value of life laws, because our state allows juries to decide for themselves the value of the deceased person’s life.
So much goes into what a jury can consider but it is somewhat like "It's a Wonderful Life." What did the person do, were they active in their church, did they help others, did they support their family, were they surrounded by friends and well loved. The more evidence there is of their life being a good one, the more a jury will care.
The value can also be drastically affected by the nature of the negligent act and their behavior. In tractor trailer cases we often have drivers driving too late into the night or driving with faulty brakes and other equipment. In premises cases there can be prior instances that warned the property owner of the problem and they took no actions to make the property safe. The more egregious the behavior of the defendant, the more the jury will want to punish them and make no mistake, commercial defendants change their behavior in part when they are afraid of getting sued for a dangerous condition.
One example of how you can show the jury the value of a persons life came when Mr. Simon spent significant time and effort gathering more than 200 pictures of a deceased person’s life, from early childhood to his 50s, when the accident occurred. So that he would be prepared to paint a clear picture for the jury, Mr. Simon also spent days looking through home videos and spending time with the person’s family—by the time he got to the courtroom, he was able to provide the jury with a true sense of just how tragic the loss of life was. No matter how precious the life of your loved one is to you, a jury will only understand your perspective if you have a lawyer who can communicate the many things that made the too-short life meaningful.Finally, You Also Need to Consider Your Wrongful Death Case’s Estate Claim
This claim covers things like medical bills, funeral expenses, and general pain and suffering caused by the accident. If there is evidence that the deceased person suffered between the accident itself and actually passing away, this can be taken into account. Although it may be difficult to think about, if the person knew that death was imminent and was forced to feel it approaching, your lawyer should take care to make sure these intangible parts of the case are fully considered.
If you are grieving the loss of a loved one and have any questions about what you have read here, please call our firm to explore your options. Mr. Simon’s significant experience handling all varieties of injury cases can help you navigate this difficult time.