Defenses in a Wrongful Death Suit
The typical wrongful death lawsuit begins when the decedent’s surviving relatives, dependents, or beneficiaries file suit against the party or parties claimed to be negligent or liable for the decedent’s death. Most wrongful death suits are based on claims of negligence. As with all negligence suits, the plaintiff bears the burden to show that the defendant had a duty to act in a certain manner, failed to act in that manner, and that such failure caused the death of your loved one.
In response to these claims, the defense may assert one or multiple defenses to prevent the plaintiff from meeting its burden. Generally, a defendant in a wrongful death action is entitled to raise any defenses that could have been raised in an action brought directly by the decedent, had the decedent lived. Depending upon the circumstances of the case, the defendant may deny liability based upon statute of limitation restrictions, lack of causation, comparative negligence, and/or imputed negligence. When these defenses persuade the court, a plaintiff may be barred entirely from recovery or the amount of damages may be reduced accordingly. Some of the defenses that may be available in a wrongful death lawsuit are discussed below.
Statute of Limitations Restrictions
A state’s statute of limitations governs the time period within which a wrongful death action must be filed. When a party files suit after the statutory period has expired, the court refuses to hear the claim. Pope v. Goodgame, 478 S.E.2d 636, 640 (Ga. Ct. App. 1996) (affirming the trial court’s conclusion that parties and claim could not be added to ongoing litigation beyond the statute of limitation). Actions for wrongful death must generally be brought within two years after the right of action accrues. O.C.G.A. § 9-3-33. However, many exceptions to this general rule exist. See, e.g., Sawyer v. Cardiology of Georgia, 506 S.E.2d 197, 197-98, affirmed, 575 S.E.2d 11 (Ga. Ct. App. 2002) (holding that Georgia law allows a plaintiff to refile suit in state court within six months of voluntarily dismissing a timely filed suit, even where the statute of limitation has run by the time the plaintiff has renewed the action). Questions regarding when a right of action accrues, which time limitation applies, whether additional claims may be filed, and whether the statute of limitations bars a suit are best addressed by experienced legal counsel.
No Causation Defense
In order to show that a defendant is liable for a wrongful death, the plaintiff must demonstrate that the defendant’s conduct was the cause of the decedent’s death. The plaintiff is not required to show that the defendant was the only responsible party in causing the decedent’s death, but the plaintiff must establish a causal connection between the defendant’s conduct and the injury, such that the injury would not have occurred without the defendant’s actions.
If no causal connection between the defendant’s conduct and the decedent’s death is established, the defendant will escape liability. This leads the defense to often argue that no causation, and thus no liability, exists for the death. The defense may also argue that, prior to his or her death, the decedent did not exercise reasonable care in obtaining treatment for an existing injury and that the decedent’s death was due to the decedent’s own actions. Where the defense can convince the court that no causation exists, no recovery will be awarded.
Often, the period between when the underlying negligence occurs and when death results encompasses a mere matter of seconds. This may be the case where one car negligently collides into another and the driver of the struck vehicle dies at the scene. In other cases, months may elapse before a wrongdoer’s negligent act results in a wrongful death. This may be the case where a physician prescribes an inappropriate medication and the patient dies two months later. The length of time between the fault and the injury is not a definite bar on filing a wrongful death suit. However, time may give rise to obstacles in the plaintiff’s quest to establish causation. Documents, medical records, responsible parties, and witnesses relating to the negligent act may become more difficult to locate as more and more time elapses. I n the most difficult situations, Law Office of Donald P. Edwards, P.C. are able to conduct a thorough investigation to establish the most persuasive case.
Comparative negligence is conduct by the decedent that contributed to his death. A comparative negligence defense is an assertion that the negligence of the victim led in part to the victim’s injury or death. Where comparative negligence is shown, an award may be reduced in proportion to the contribution of the victim’s negligence, or an award may be prevented altogether if the victim’s negligence, when compared with the defendant, is equal to or greater in terms or contributing to the situation which caused the injury or death. This issue of comparative negligence is typically one for the jury. Powell v. Alan Young Homes, 554 S.E.2d 186 (Ga. Ct. App. 2001) (trial court did not err in submitting issues of decedent's comparative and contributory negligence to jury in wrongful death case); N. Ga. Elec. Membership Corp. v. Webb, 540 S.E.2d 271 (Ga. Ct. App. 2000) (jury question raised in wrongful death suit regarding contributory negligence of plaintiff's decedent); Norman v. Williams, 469 S.E.2d 366 (Ga. Ct. App. 1996) (trial court properly charged jury on comparative negligence principles in wrongful death case where evidence supported a finding of substantial negligence on the part of decedent).
Imputed negligence occurs when one person is held legally responsible for another person’s negligence due to the relationship between the parties. The person to whom the negligence is “imputed” is considered vicariously negligent. In a wrongful death context, imputed negligence may arise where a court finds a party otherwise entitled to bring a wrongful death suit comparatively negligent or fully responsible for the decedent’s death. Some states bar the wrongdoer and all others from bringing a wrongful death suit where an otherwise entitled party is found partially or wholly at fault for the decedent’s death. In Georgia, however, only those parties partially or wholly at fault are unable to recover damages, while the party or parties “next in line” are still eligible to receive damage awards. Matthews v. Douberley, 428 S.E.2d 588 (Ga. Ct. App. 1993)(finding that a husband’s negligence in the automobile accident that killed his wife precluded his own recovery but did not bar recovery for the couple’s child).
In all matters involving wrongful death it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If a loved one has been a victim of wrongful death, call Law Office of Donald P. Edwards
now at 404-526-8866
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. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee
basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation
for your injuries, but a lawsuit must be filed before the statute of limitations