Death is a difficult subject to discuss with many people, especially when a death was caused by the negligence of another person. However, the law in Georgia is structured in a way that gives the people left behind from a painful death at least some option in terms of closure – a claim of wrongful death.

Wrongful Death

A claim of wrongful death is an action that is brought to court by members of the deceased’s family or representative where the death was caused by the wrongful act of another person or entity.

Like a claim of personal injury, a wrongful death claim is a claim is usually based on some type of negligence, which must be proven. The difference with a wrongful death claim is that the end result of the negligence is death and not an injury that can be repaired by way of court awarded compensatory and punitive damages.

Therefore, because the deceased person is not able to bring a claim on their own behalf, the law allows for that person’s family members or, a personal representative on behalf of that person’s estate, to bring a claim for damages.


The law in Georgia stipulates the following procedural order in terms of who may bring a wrongful death claim:

  • The deceased’s spouse
  • If the deceased does not have a living spouse, the deceased’s children
  • If the deceased does not have a living spouse or children, the deceased’s parents
  • If the deceased does not have a living spouse, children or living parents, then the representative of the deceased’s estate may bring suit.

The law in Georgia does limit the time for which a wrongful death claim must be filed to two (2) years from the date of death. However, the two (2)-year window does freeze if the circumstances surrounding the death have a criminal element that is being investigated or tried in court. Once the criminal aspect of the case is resolved, the two (2)-year statute of limitations will unfreeze.

Elements of a Wrongful Death Claim

Just like a claim of personal injury, in order to prove that a wrongful death occurred due to the negligence of another person or entity, the following elements must be proven:

  • The defendant had a duty
  • The defendant breached their duty
  • The defendant’ breach was the proximate cause of the injury
  • Damages exist


The word “duty” can easily be replaced by the word “responsibility” in that for the first element of a claim of wrongful death to be met, the defendant must have had a responsibility to do or not do something.

For example, the defendant was driving while intoxicated and was speeding at the time that an accident occurred, causing the death of another driver to which you are bringing a claim on their behalf. As a driver of a motor vehicle, the defendant had a responsibility and owed a duty to both him, as well as other drivers, to not get behind the wheel while intoxicated and to obey the traffic laws instituted by the state of Georgia.


The second element that needs to be proven in a wrongful death claim against a defendant is that the defendant breached their duty. Thus, in order to prevail in a claim of wrongful death, the defendant must have acted unreasonably under the circumstances.

Using the above example, the defendant’s action of driving while intoxicated in addition to driving at a speed higher than the speed limit is a clear breach and violation of their owed duty.


Even though a case may establish that a defendant owed a duty to the plaintiff and that duty was breached, the case will fail if it cannot be established that the breach of the owed duty was the cause of death.

Causation needs to be proven in both actual as well as proximate terms.

Actual causation requires that the defendant’s breach of duty be the cause in fact of the death.

For example, but for the defendant’s action of driving while intoxicated at a speed that was higher than the instituted speed limit, the car accident would not have occurred and the other driver would not have been killed.

Proximate cause refers to how foreseeable the death would be as a result of the action or in action of the defendant. Therefore, in order for a recovery to be permitted, the death must have been close in time or within the chain of causation linked to the action or inaction of the defendant.

Using the above example, a court would assess how likely the death that occurred would be given that the defendant breached his duty by driving while intoxicated. Since driving while intoxicated laws are treated with the utmost importance due to the extreme danger associated with such an act, it is highly likely that a court would find that the defendant’s act of driving while intoxicated was the proximate cause of the death.


The law in Georgia allows a family member in a wrongful death action to recover the full value of the life of the deceased, without deducting for personal expenses the deceased person would have had, had they remained living.

To determine exactly what the “full value of the life” would have been the courts will look to:

  • The present value of the decedent’s future income that he/she would have earned over their life expectancy using evidence of income, job history, etc.
  • Additional economic factors that are unable to be proven by evidence, such as the joy of life as it relates to marriage, having children, friends, etc.

If a personal representative is bringing the claim instead of a member of the deceased’s family, they are permitted to recover damages related to any medical treatment of the deceased as well as funeral costs.