There are a lot of families in the United States that have experienced and continue to experience the death of a family member due to wrongful death. Legally wrongful death is seen as the death of an individual that is as a result of premeditated criminal acts, careless, negligent, and reckless behavior of a business or an individual person. Wrongful death falls under the category of a personal injury case in many ways. The individual with the burden of proof should show that the acts of negligence committed by the accused party are what led to the wrongful death.
Wrongful death cases are common all around the country. Even so, in Georgia, if you are filing for a wrongful death case there are a variety of specific rules. If you lost a loved one as a result of someone else’s negligence you may be wondering how do you prove wrongful death in Georgia. In this article, we will help you understand what is wrongful death and other details pertaining to the claim.
Wrongful deaths cause significant financial and emotional suffering to those that bear the loss. When a death occurs it feels wrong to those left behind. Even so, to a wrongful death lawyer and their clients, the term wrongful death has a specific meaning. Those left behind as a result of wrongful death have a legal right.
The Elements of Wrongful Death Claim
If you are to present a valid wrongful death claim you should be able to prove these four elements.
Negligence
In a wrongful death case, the wrongful death lawyer and the surviving family member work together to prove that the recklessness, carelessness, or the actions of the negligent party caused the death of their loved one in part or in whole.
Breach of Duty
If the grieved party is to have success in a wrongful death case they are required to provide proof that shows that the accused party owed a duty of care to the victim. For example, the owner of a business premises has the duty to alert customers if there is ongoing construction in the building. A health care worker has the duty to maintain the health of their patient.
The affected party is required to show proof as to how the duty of care towards them existed and they should show that as a result of the defendant’s negligent actions the duty of care was breached.
Causation
The plaintiff filing the lawsuit should prove how the wrongful actions of the defendant has resulted in the death of their loved ones in addition to proving that the defendant had breached the duty of care towards the deceased. The plaintiff must be able to prove that the defendant was the cause of the death.
Damages
It is necessary for the death of the victim to have generated quantifiable damages. These types of wrongful death damages include;
- Loss of income
- The pain and suffering of the victims before time of death
- Hospitalization
- Burial costs and funeral expenses
- Medical expenses
- Funeral costs
- Loss of inheritance, protection and guidance
- Loss of potential earnings
For you to be able to prove these points through a wrongful death claim in court it will require you to produce strong and convincing evidence. Some of the evidence that you will present before a judge will require you to have an expert witness to support your statements. For you to build a case that revolves around the facts and evidence that should be provided in your case it is necessary to seek the help of a wrongful death attorney.
Who Can File a Wrongful Death Lawsuit?
The laws in Georgia are very clear on who can file a wrongful death lawsuit. Since it is impossible for the injured party to file the case a living representative must represent them.
Here are some of the people that can file a wrongful death lawsuit in Georgia.
The Spouse of the Deceased
This is the first person with the go ahead to file a wrongful death lawsuit in Georgia. The living spouse can as well file the lawsuit on behalf of any minor children that the deceased had before their demise. Even so, the spouse is entitled to a third of the finances recovered from a wrongful death lawsuit.
The Kids of the Deceased
When there is no surviving spouse the adult children of the deceased party are allowed to take legal action and file a wrongful death claim.
The Parents of the Deceased
If the individual who has dies as a result of wrongful death does not have any children or a spouse, according to Georgia laws, the surviving parents of the individual can file a wrongful death lawsuit.
If the parent of the deceased individual are no longer together (they can be divorced or separated), any of the financial damages recovered in the case will be done within the discretion of the court. It is necessary to note that if one of the parents abandoned the deceased or failed to provide for them the court is likely to bar the individual from filing the wrongful death lawsuit.
The Estate Representative
If there is a designated estate representative they can as well file a wrongful death claim. In this situation the estate representative will receive any money that has been award for damages. The money will be distributed as required by law by a probate court.
Damages Recoverable for a Wrongful Death Claim
It can be really hard to put a value on a person’s life. Even as this is the case, the damages that will be stated below try to do that. The damages place a full life value on a person and they are based on both non-economic and economic factors. Here is how these factors can be determined.
Economic Value
When the economic factor is weighed it pertains to the capacity that the victims earnings. How much the victim would have earned if they lived up to the point where they died a natural death will be weighed in the economic factor. In the case where the deceased was employed it is easier to make these calculations. The figure can be based upon the victim’s earnings, pension, benefits, and the time that they had left in the workplace plus other factors.
It is much more difficult to do the calculations if the deceased was retired, unemployed, a child, or a stay at home mom. This is not to mean that these lives do not have an economic value. Most of the time the court will consider the evidence presented by expert witnesses in order to calculate the fair amount.
Non-economic Value
When it comes to the non-economic damages or they are much more subjective. It is evident that the deceased life was cut short and they lost all of the benefits of living a full life. The family members left behind lost their chance of having the companionship, love, care and other intangible benefits that they could have received from the deceased. When a lawyer takes up this case they work on getting extensive information about the life of the victim so that they can show the full impact that the loss has had on those left behind.
Estate Claim
It is important for the estate of the victim to file the estate claim. This does not include the value of the life of the deceased person. The estate claim accounts for the expenses incurred by the estate as a result of the death of the deceased person. This can include medical expenses, funeral, and burial expenses as well as the pain and suffering that the deceased endured.
It is important for those that were survived the deceased keep a record of such expenses.
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Punitive Damages
The judge rarely awards punitive damages but when they do, they do so to award punishment to the defendant. Punitive damages can be awarded in cases where the individual was drinking and driving and any other case where the person responsible caused harm to the deceased victim intentionally.
The Wrongful Death Act in Georgia
In Georgia, the Georgia Wrongful Death statute has been in existence for more than one hundred years and over the years there have been several addendums added to it. There are several legal grounds outlined in the five code sections of the wrongful death statute. Here are some of them;
- Nursing home neglect or abuse
- Driving under the influence of alcohol or illicit drugs
- Motor vehicle accidents caused by negligent or reckless driving
- Criminal actions that is inclusive of intentional homicide
- Engineering defects and faulty construction
- Pedestrian accident deaths
- Product defect. When wrongful death comes about as the result of a defective product that is designed to be used by consumers such as an appliance, a medical device, electronics or a vehicle it can result in a product liability claim that resulted in wrongful death.
- Medical malpractice. It can occur as a result of medication error, a misdiagnosis, surgical error or a medical error
- Wrongful death attorneys specialize in a variety of cases. You deserve to get the best representation for that reason the attorney that you hire should have experience representing clients in the area that concerns you.
How to Go About a Wrongful Death Claim
In the case where you think that you have a wrongful death action, there are several things that you should do in the early stages of the process.
Here are some of the steps that you can take when you are dealing with a wrongful death lawsuit;
- Gather the legal documents and the affairs if the deceased. Put the documents of the decedent in order that includes documents such as their will. Since the deceased person will not be able to file the lawsuit themselves they will need a personal representative. Typically the representative that needs to file the lawsuit will be named in the will. This representative will be able to recover compensation on behalf of the estate of the individual and they will then distribute it the dependents.
- Gather evidence that concerns the wrongful death lawsuit that you would like to file. The evidence that you are putting together is inclusive of eye witness statements, medical records and reports, photos taken from the accident scene as well as other evidence or information that is related to the accident. It is necessary to include documentation about financial losses that are associated with the death of the decadent. In some instances it is necessary to request an autopsy so that it can help prove what caused the death of your loved one. It will also help to strengthen your case against the at fault party.
- Get a legal representative to represent you. No matter how much information you gather if you do not have a legal background there are details that you will not have full insight about. For you to be able to higher your chances of having a successful civil claim you should hire a personal injury lawyer as soon as you can to help provide you a deeper insight about the details of your personal injury lawsuit.
The above steps are just a few things that you can do when you are considering a wrongful death claim. When you hire an attorney they can help you to carry out the rest of the tasks and take care of wrongful death matters that will help you to prove your personal injury claim.
If you want to learn more about filing a wrongful death claim in Georgia you can contact our wrongful death attorney at Marks Law Group.
With the untimely death of a loved one comes a difficult time and we would like to be part of the team that helps you recover. We can help you file a wrongful death settlement lawsuit so you and your family can get full financial compensation for your loved ones unexpected death.