When a loved one dies because of another party’s negligence, Georgia law allows surviving family members to pursue justice through a wrongful death lawsuit. But what if the deceased was partially at fault? In such cases, Georgia’s comparative negligence law comes into play, potentially reducing or eliminating the compensation survivors can receive.
Under Georgia’s modified comparative negligence rule (O.C.G.A. § 51-12-33), a wrongful death claim can still succeed as long as the deceased was less than 50% at fault. If the court finds the deceased 50% or more responsible, the surviving family cannot recover damages. If fault is shared but under that threshold, damages are reduced in proportion to the deceased’s percentage of fault.
This piece breaks down how Georgia’s comparative negligence law affects wrongful death claims, step by step.
Step 1: Understanding Georgia’s Comparative Negligence Standard
Georgia follows a modified comparative negligence system. This means:
- If the deceased is 49% or less at fault, the family can recover damages.
- If the deceased is 50% or more at fault, no recovery is permitted.
- If fault is shared but under 50%, the recovery is reduced by the percentage of fault assigned to the deceased.
Example: If damages total $1,000,000 and the deceased is found to be 20% at fault, the family may receive $800,000.
This system applies to all personal injury and wrongful death cases in Georgia and is codified in O.C.G.A. § 51-12-33.
Step 2: Identifying the Parties Involved in the Claim
In a wrongful death claim, Georgia law allows the following to file:
- Spouse of the deceased
- Children (if no spouse)
- Parents (if no spouse or children)
- Estate representative (if none of the above apply)
Understanding who can bring the claim is critical, especially when fault will be analyzed and distributed among parties. The estate may also bring a survival action for pain and suffering or medical bills prior to death.
Step 3: Investigating and Gathering Evidence
Fault determinations depend heavily on evidence. The legal team must collect:
- Police reports
- Eyewitness statements
- Video surveillance
- Photographs of the scene
- Medical and autopsy reports
- Expert accident reconstruction analysis
In comparative negligence cases, the other side will attempt to blame the deceased to reduce liability. It is essential to counter these arguments with compelling factual and expert evidence.
Tip: Act quickly. Evidence can degrade or disappear. Early legal intervention helps preserve vital records.
Step 4: Determining the Apportionment of Fault
This step involves assigning fault percentages to each party:
- The plaintiff’s attorney presents the case to prove the defendant’s negligence.
- The defense will argue the deceased contributed to their own death.
- Expert witnesses (e.g., accident reconstructionists, engineers, medical experts) provide insight.
- In a trial, the jury ultimately assigns fault.
Example Scenarios:
- In a fatal car crash, was the deceased speeding or distracted?
- In a construction site death, did the worker ignore safety warnings?
- In a premises liability case, was the decedent trespassing?
Every percentage point matters. The closer the deceased gets to 50% fault, the more the case is at risk.
Step 5: Calculating Damages and Applying Fault Percentages
Georgia recognizes two types of damages in wrongful death claims:
- Full Value of the Life of the Deceased (measured from the decedent’s perspective)
- Lost wages and benefits
- Loss of care, companionship, and enjoyment of life
- Estate Claim (for the benefit of the estate)
- Medical expenses
- Funeral costs
- Pain and suffering prior to death
Once the total damages are calculated, the court applies the comparative negligence formula.
Example:
- Total damages: $2,000,000
- Deceased found 30% at fault
- Recovery: $1,400,000
Step 6: Negotiating With Insurance Companies
Insurance companies often cite comparative negligence to:
- Reduce payouts
- Shift blame to the deceased
- Deny claims if they believe the fault exceeds 50%
An atlanta wrongful death lawyer must:
- Present strong liability evidence
- Refute exaggerated blame arguments
- Show the comparative fault, if any, was minimal or legally insignificant
Negotiations may resolve the case without trial, but understanding Georgia’s laws is essential to respond to lowball offers and inaccurate fault assessments.
Step 7: Filing the Lawsuit Within the Statute of Limitations
Georgia requires wrongful death lawsuits to be filed within 2 years of the date of death (O.C.G.A. § 9-3-33), but this can be extended if:
- There is a criminal case pending relating to the death
- The estate has not yet been probated (the statute may toll for up to 5 years)
Missing the deadline bars the case, regardless of the facts. Filing early also allows more time to build a fault-resistant case.
Step 8: Preparing for Trial (If Necessary)
If negotiations fail, the case proceeds to trial. Trial preparation includes:
- Jury instructions on comparative negligence
- Voir dire (jury questioning) to screen for bias
- Motions to exclude irrelevant or unfair evidence
- Trial exhibits that clearly illustrate fault and damages
A strong trial strategy is especially important in comparative negligence cases. The jury must:
- Understand the legal thresholds
- Appreciate the real-world impact of the death
- See why the deceased bears minimal or no fault
Step 9: Receiving the Verdict and Post-Trial Motions
If the jury finds the defendant liable:
- They assign fault percentages
- They award damages
- The judge adjusts the final amount by applying the deceased’s share of fault
If the outcome is unfavorable (e.g., deceased found 50% or more at fault), the attorney may file post-trial motions or an appeal arguing the evidence didn’t support the fault assignment.
Step 10: Distributing the Wrongful Death Settlement or Award
Georgia law outlines how wrongful death proceeds are distributed:
- Spouse and children share the award
- If no spouse/children: Parents or estate receive the proceeds
- The spouse receives no less than one-third, regardless of the number of children
This step ensures that eligible family members receive the financial compensation intended to ease the burdens caused by their loved one’s death.
Final Thoughts
Comparative negligence can significantly impact the outcome of a wrongful death case in Georgia. Even a strong claim can fail if the deceased is found 50% or more at fault. That’s why every step in this process—from gathering evidence to presenting expert testimony—must be handled with precision and urgency.
Working with an attorney who understands Georgia’s wrongful death statutes and comparative fault laws is critical. If your family is facing questions about shared fault after a fatal accident, don’t leave your case to chance.
Contact us for a free consultation todayF. Let us help you fight for the justice and compensation your loved one deserves.
