If the child did not leave a spouse or a child of his own, the wrongful death claim belongs to the parents. The jury is not asked to put a price on the parents’ grief. The jury is asked to decide the full value of the child’s life, measured from the point of view of the child.
There is no harder phone call than the one from a parent whose child has died.
Nothing I can do brings the child back. Parents know that. Most of them are not calling about money. They are calling because someone was careless, and their child paid for it. They want the truth to come out about what happened to their child, and they want justice.
Georgia law gives them a way to make that happen. It is called a wrongful death claim. This post explains who holds that claim when the person who died is a child, what a jury is asked to decide, and the deadlines that do not wait for grief.
The claim belongs to the parents
In every case of the homicide of a child, there shall be some party entitled to recover the full value of the life of the child. If the child did not leave a spouse or a child of his own, the claim belongs to the parents.
When a child dies because of someone else’s negligence, O.C.G.A. § 51-4-4 says the right to recover is governed by O.C.G.A. § 19-7-1.
Section 19-7-1(c) begins with a promise. In every case of the homicide of a child, there shall be some party entitled to recover the full value of the life of the child. “Homicide” here does not mean murder. It means any death caused by another, including a death caused by a careless driver, a negligent doctor, or a property owner who ignored a known danger.
If the child did not leave a spouse or a child of his own, the claim belongs to the parents.
- Parents living together and not divorced hold the claim jointly.
- If one parent has died, the surviving parent holds it.
- If the parents are divorced, separated, or living apart, the claim belongs to both of them.
It does not matter whether the child was born out of wedlock. That is not a bar.
It does not matter how old your child was
Section 19-7-1(c) applies to the death of a child “minor or sui juris.” If your 19-year-old son was killed in a wreck, and he was not married and had no children, the wrongful death claim is yours.
Parents of young adults are often surprised by this.
Section 19-7-1(c) applies to the death of a child “minor or sui juris.” Sui juris means an adult. If your 19-year-old son was killed in a wreck, and he was not married and had no children, the wrongful death claim is yours, just as it would have been when he was 9.
If the adult child was married or had children, the claim generally passes to the spouse or the children instead, under O.C.G.A. § 51-4-2.
I have written about the claims that follow the death of a teenager in a car wreck here.
When the parents are not together
Divorce does not end either parent’s right. If one parent refuses to proceed, or cannot be located, the other parent may bring the claim for both. Either parent may file a motion before trial asking the judge to apportion the recovery fairly.
Divorce does not end either parent’s right. Both parents hold the claim.
That can create problems. One parent wants to sue, and the other does not. Or one parent cannot be found.
The statute deals with this. If one parent refuses to proceed, or cannot be located, the other parent may hire a lawyer and bring the claim for both. The recovery is divided equally between the parents, unless a judge is asked to divide it differently. The absent parent’s share is held under the court’s direction.
Equal is not always fair. Sometimes one parent raised the child and the other was absent for years. For that reason, either parent may file a motion before trial asking the judge to apportion the recovery fairly. The judge then hears evidence about each parent’s relationship with the child, including custody, control, and support, and divides the money accordingly.
What “the full value of the life” means
The economic part is what the child would have earned and contributed over a lifetime. The intangible part is the value of living the life itself. It is left to the enlightened conscience of the jury.
This is the part that surprises families most.
In a Georgia wrongful death case, the jury is not asked to put a price on the parents’ grief. Georgia does not measure the loss that way. The jury is asked to decide the full value of the child’s life, measured from the point of view of the child.
O.C.G.A. § 51-4-1 defines the full value of the life as 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.
That value has two parts.
The economic part is what the child would have earned and contributed over a lifetime. A child has no paycheck yet. That does not make this part zero. Economists project it from the child’s likely education, the family’s background, and the working life the child probably would have had. Because Georgia does not subtract personal expenses, the figure is not reduced by what the child would have spent on food, housing, and living.
The intangible part is the value of living the life itself. Birthdays. Friendships. A first job. A wedding. Children and grandchildren. Ordinary Tuesday afternoons. This is often the larger part of a child’s case, and it is the part no economist can calculate. It is left to the enlightened conscience of the jury.
That is why a child’s wrongful death case is built on who the child was. Photographs. Videos. Report cards and drawings. Teachers, coaches, pastors, and friends who can tell a jury about this particular child. The defense will try to make the child a statistic. Your job is to make sure the jury meets your son or daughter.
The estate has a separate claim
Under O.C.G.A. § 51-4-5(b), the administrator of the child’s estate may recover the funeral, medical, and other necessary expenses resulting from the injury and death.
The wrongful death claim belongs to the parents. A second claim belongs to the child’s estate.
Under O.C.G.A. § 51-4-5(b), the administrator of the child’s estate may recover the funeral, medical, and other necessary expenses resulting from the injury and death. If the child lived for a time after the injury, the estate may also recover for the child’s conscious pain and suffering before death.
To bring the estate claim, someone usually has to be appointed in probate court as the administrator. In most families, that is a parent. It is a step that is easy to overlook while you are focused on the wrongful death case, and it should not be.
Unborn children
For an unborn child, the right to recover the full value of the life begins once a detectable human heartbeat is present. That is much earlier in a pregnancy than quickening.
Georgia law on the death of an unborn child has changed.
For decades, Georgia allowed a wrongful death claim for an unborn child only after “quickening,” when the mother could feel the baby move. I wrote about that rule, and why I thought it should change, in 2011 and 2012.
Section 19-7-1(c) now provides that, for an unborn child, the right to recover the full value of the life begins once a detectable human heartbeat is present, as defined in O.C.G.A. § 1-2-1. That is much earlier in a pregnancy than quickening. If you lost a pregnancy because of someone else’s negligence, talk to a lawyer before you assume you have no claim.
The deadline does not wait for grief
The wrongful death claim must generally be filed within two years of the child’s death. A parent’s wrongful death claim belongs to the parent, and it runs from the date of death.
The wrongful death claim must generally be filed within two years of the child’s death. O.C.G.A. § 9-3-33.
The minor tolling statute does not help here. That statute protects a child’s own claim while the child is a child. A parent’s wrongful death claim belongs to the parent, and it runs from the date of death. I explained the difference in The Minor Tolling Statute in Georgia: Your Child’s Deadline Is Not Your Deadline.
If a city, a county, a school, or the State may be responsible, there may be a notice deadline far shorter than two years. A claim against a city can require written notice within six months. Do not wait to find out.
What I tell grieving parents
Do not talk to the other side’s insurance company about how your child died. Preserve the evidence. Talk to a lawyer before you sign anything, including a release from an insurance company.
You do not have to make any decision this week. But a few things should happen soon, and someone other than you can do them.
- Do not talk to the other side’s insurance company about how your child died. Refer them to your lawyer.
- Preserve the evidence. Photographs, video, phones, the car, the product, the medical records. Evidence that is not saved is often lost.
- Get the names of witnesses while people still remember what they saw.
- Keep the things that show who your child was. You will want them anyway. A jury will need them.
- Talk to a lawyer before you sign anything, including a release from an insurance company. A release can end claims you did not know you had.
A wrongful death case will not heal a family. But it can force the people responsible to account for what they did, and it can tell the truth about the value of a life that was cut short. Every child’s life has full value. Georgia law says so.
Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.
If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.