Negligence is the Cornerstone of Your Georgia Wrongful Death Claim
However, you’re getting a little ahead of yourself. Not every fatality automatically means contacting the insurance company. Sometimes, the loss of a loved one is simply no one’s fault. Before the Peach State lets anyone file a wrongful death claim, you must prove the at-fault party is negligent.
Understanding the Key Elements of Negligence
If you’re getting ready to file a wrongful death claim for the loss of a loved one, you’re stating that their death is caused by the reckless, negligent, or intentional actions of another individual.However, simply believing the at-fault party’s actions or behaviors are negligent isn’t enough to move forward with a wrongful death claim. As the plaintiff in the claim, the burden of proof is on you. This means proving the key elements of negligence.
Duty of Care
This is the first element of negligence and often the easiest to prove. This is simply because everyone owes someone a duty of care. What the duty is varies depending on the situation. Motorists must follow all traffic laws.Business owners have a duty to ensure their property is safe for visitors. Physicians have a duty to their patients, you get the idea. To establish this element of negligence, you must show the defendant owes your loved one a duty of care.
Breach of Duty
Depending on the type of accident, proving the at-fault party breached their duty of care can be complicated. You must show that the defendant’s actions aren’t those you expect from a reasonable person. Determining what’s considered reasonable behavior can be subjective. However, this element of negligence also looks at reasonable behavior from a common sense viewpoint.An example of breach of duty resulting in a wrongful death from a car accident can be if the at-fault driver willfully speeds through a red light. Common sense says that a reasonable person will stop at the red light and wait for it to turn green before proceeding through the intersection.
Standard of Care
This element ties into duty of care and breach of duty. First, you must show that there is an established standard of care. Sticking with the red light accident, the at-fault driver’s standard of care is to follow all traffic laws. A reasonable person will use caution at an intersection and stop their vehicle when the light turns red.Sometimes, the standard of care and breach of duty are combined but it helps to have a general understanding of both legal terms.
Negligent Action
If some of these elements of negligence seem to be repeated, it’s because each one builds off of the other. If you can’t prove one element, you’re going to run into problems establishing the others. This may mean you don’t have grounds to pursue a wrongful death claim.To show negligent action, you once again turn to the at-fault party’s behavior. Does the defendant’s actions fall below a reasonable standard of care? This can include reckless driving, once again, running a red light. An employee failing to clean up a spill can also be considered a negligent action. After all, a reasonable person will clean up the mess or at least place a caution sign.
Foreseeability
No, this doesn’t mean the at-fault individual should be able to see into the future. We’re not talking about breaking out a crystal ball or tarot cards. Instead, this legal term refers back to a breach of duty.Would a reasonable person have expected their actions to potentially cause an accident? This can also apply to an individual’s inactions, like not cleaning up a spill on the floor.
Causation
Like duty of care, causation usually isn’t too difficult to prove. You’re showing that the at-fault party’s breach of duty is the direct cause of your loved one’s death. In other words, your loved one didn’t pass away from natural causes. The accident is the sole cause of their death. This applies even if your loved one doesn’t immediately pass away from their injuries.You must show the defendant’s actions caused the accident and the loss of your loved one. This is also known as establishing a link between the defendant’s negligence and the accident that caused your loved one’s death.
What’s the But-For Test?
You’ve established negligence and you’re ready to file a wrongful death claim. Not so fast, you may need to go through what’s known as the but-for test. This is usually taken care of when you’re proving causation. Think of it as playing devil’s advocate.The test is pretty simple. You’re only asking if the death would have still occurred without the defendant’s negligent actions. If you can show only the defendant’s actions are responsible for your loved one’s untimely death, you’ve successfully proven causation.
Going through a but-for test can seem like a waste of time but it can help ensure your claim is fully supported by irrefutable evidence.
Who Can File a Wrongful Death Claim in Georgia?
Like most states, Georgia doesn’t allow just anyone to file a wrongful death claim. If you can file a claim every time a casual acquaintance passes away the court’s calendar will be backlogged for years.Only specific individuals are legally allowed to file a wrongful death claim. This includes the surviving spouse, children, parents, and the deceased siblings. If the deceased isn’t survived by close family, the court may appoint an estate executor to handle filing the wrongful death claim.
Don’t Go Through a Wrongful Death Claim Alone
Even though you have a general idea of how to establish negligence in a wrongful death claim, it doesn’t mean you’re ready to face off with the insurance company. Talk to a wrongful death attorney about your potential claim. Let your attorney handle the legal aspects so you can focus on grieving the loss of your loved one.Do You Need An Attorney?
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Posted - 03/05/2025
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