Georgia Wrongful Death Attorney Lawyer

Criminal vs. civil law: how wrongful death cases differ

One category of tort covered by personal injury (civil) law is wrongful death. Although criminal acts can result in wrongful death proceedings, there are some significant distinctions between wrongful death and criminal cases.

First off, the goal of a wrongful death lawsuit is usually to make the defendant—the person or business that caused the death—financially recompense the plaintiff for their loss rather than penalize them. The term "damages" refers to this reimbursement.

In contrast, a person found guilty of homicide or manslaughter in a criminal prosecution may be subject to probation, jail time, loss of driving privileges, and other sanctions. In addition, some criminal defendants have to pay a fee to the state; nevertheless, the spouse or family of the victim they killed does not get this money.

Stated differently, a criminal conviction does not bring financial help to a mourning family, even while it may bring about a certain amount of justice and accountability. You must file a wrongful death lawsuit in civil court if you want financial recompense for the loss of your loved one.

The distinction of who can file a case is also significant. A prosecutor chosen by the government brings charges on behalf of the state and the victims in a criminal case. Either a government-appointed counsel or a private defense lawyer is hired by the defendant to represent them. In a criminal prosecution, the surviving person or the deceased person's estate may be called as witnesses, but they will not ultimately be involved in the sentencing or plea bargain discussions.

The surviving family members or estate of the deceased may decide to bring a civil lawsuit in the event of a civil tort, such as a wrongful death lawsuit. Typically, the defendant hires a defense counsel and the plaintiff hires a wrongful death attorney to represent them. In contrast to criminal charges, civil claims may be "dropped" in the event that mediation or discussions result in a pre-trial settlement.

The processes involved in wrongful death lawsuits and criminal (homicide) accusations vary as well. Most criminal cases proceed to trial, which is chaired by a jury and judge. Although the 6th Amendment to the United States Constitution guarantees everyone the right to a fair and impartial trial, plea bargain agreements and deferred adjudication can occasionally lower the sentences a defendant must spend.

On the other hand, cases involving wrongful death don't often get to trial. The great majority of wrongful death claims are resolved out of court through pretrial discussions, mediation, or arbitration, however some cases do go before a judge and jury in civil court.

Finally, there are differences in the burden of proof between civil cases such as wrongful death and criminal cases like homicide. The prosecution has to establish the defendant's guilt "beyond a reasonable doubt" in a criminal proceeding. The highest legal standard is this.

By contrast, in a wrongful death action, plaintiffs (or their attorneys) need to prove that the defendant was at least 51 percent accountable, or more likely than not, responsible for the loss of their loved one (known as a "preponderance of the evidence").

A person whose criminal charges were dropped may still be responsible in civil court for personal injury or wrongful death damages; for instance, consider the OJ Simpson case. This is because proving culpability is more difficult in criminal prosecutions than in civil claims. A criminal conviction is not necessary, but it can establish a civil tort suit.

Common questions and answers about wrongful death

The rules and restrictions pertaining to wrongful death claims in Georgia are outlined in Title 51, Chapter 4 (O.C.G.A. § 51-4). We've addressed some of the most often asked issues below, since it can be difficult for non-legal professionals to understand these laws and codes.

What is the time limit within which I can file a wrongful death claim?

In most Georgia wrongful death claims, surviving spouses, children, or eligible dependents have two years from the date of death to file a claim. If you miss this deadline—also known as the "statute of limitations"—you most likely won't be able to file a claim.

For wrongful death lawsuits brought against government organizations or agencies, the statute of limitations may be as short as six months or a year.

Though the statute of limitations is rarely waived, there are a few notable circumstances in which the deadline for bringing a wrongful death claim may be "tolled" or postponed. Given the complexity of most cases involving people who were mistakenly killed, figuring out which date applies may be difficult. It is advised that you speak with a personal injury lawyer as soon as you can to learn about your legal choices and make the necessary decisions before the time runs out on your capacity to make a compensation claim.

Who is eligible for wrongful death benefits?

Regarding who is eligible to bring a wrongful death claim, Georgia law is very clear. You are not eligible to pursue a wrongful death lawsuit, even if the deceased was your closest friend. Damages are only recoverable by surviving family members who are connected to the deceased in one of the following ways:

● Spouse. Wives and husbands of the departed often the first to file a wrongful death lawsuit. In addition, the surviving spouse may submit a claim on behalf of themselves and any under-18 children of the deceased. The spouse and any living children must split the reward if the dead left no will. However, regardless of the number of children, the surviving spouse is entitled to at least one-third of the total claim settlement or award.

●Kids. The juvenile (under 18) and dependent children of the deceased may pursue a wrongful death claim if there is no surviving spouse. In cases where a spouse and children file a wrongful death claim together, the settlement amount must be divided equally.

● Parents. The deceased person's surviving parents may bring a wrongful death lawsuit if they were single (unmarried) and had no children.

● Director. In some circumstances, an authorized personal representative, or "executor," may be named. The closest next of kin of the deceased must normally receive whatever damages these executors are awarded in a wrongful death settlement or award.

What types of damages are awarded in a wrongful death lawsuit?

When an individual passes away as a result of a crime, criminal activity, or other negligence, Georgia law stipulates that "the personal representative of the deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person".

The first kind of wrongful death compensation is compensatory damages. These include the following and are meant to help the deceased's surviving family member deal with the financial burden of their passing:

● Burial and funeral costs. The costs associated with funerals and burial arrangements vary based on the desires of the departed and their close companions. Families can sue the defendant for these costs in a wrongful death case.

● Healthcare expenses. It's possible that your loved one visited a hospital, emergency department, urgent care center, or another type of healthcare facility to obtain treatment for their fatal injury before they passed away. The arrival of medical bills in the mail after the death of a spouse, child, parent, or relative often shocks and infuriates bereaved families. A wrongful death damages award should pay for all of these medical costs.

It is more difficult to determine whether eligible dependents will get the "full value of the decedent's life" under the second category of wrongful death damages. The statute defining the full value of a deceased person's life says, "Means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived."

These damages may also include the loss of care, companionship, and guidance (referred to as "loss of consortium") that the deceased's loved one will never be able to receive, in addition to the loss of income, benefits, and retirement benefits that the deceased would have received during their lifetime.

Certain situations may also allow for the award of punitive damages. Punitive damages are only granted in cases when the defendant acted in a "grossly negligent," malicious, willful, or indifferent manner. Although the plaintiffs are not allowed to ask for punitive damages, the jury or judge may opt to punish the perpetrator by awarding additional damages.

How do you prove wrongful death?

A wrongful death claimant must demonstrate, by a "preponderance of the evidence," that the defendant was at least 51% at fault for the demise of their loved one. This requirement is the same as in other personal injury claims. 

The following factors must be proven in order for a wrongful death claim to be successful, and you must help the jury or judge determine these things as well:

1. Responsibility. Did the accused party have an obligation of care to your departed loved one?

2. Breach. In what way did the defendant's actions or inactions violate this duty of care?

3. The Cause. Did your loved one die as a direct result of the duty violation, rather than from another cause?

4. Injury. What quantifiable harm did the passing of your loved one cause?