Child Wrongful Death in Georgia: Claims When Families Lose Children

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When a child dies, Georgia’s wrongful death statutes answer who may bring a claim before they reach what the claim recovers. A separate Code section, not the general wrongful death provision, fixes the right of recovery when the deceased child leaves no spouse or child, and it distinguishes parents who live together, a surviving parent, and parents who are divorced, separated, or living apart. What the parents then recover is the full value of the child’s life, measured by the child’s own life rather than by the family’s grief.

Who May Bring the Claim

OCGA 51-4-4 provides: “The right to recover for the homicide of a child shall be as provided in Code Section 19-7-1 and Code Section 53-1-5.” OCGA 19-7-1(c)(1) states that “[i]n every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child, either as provided in this Code section or as provided in Chapter 4 of Title 51.”

If the child “does not leave a spouse or child,” the right of recovery belongs to the parents as follows (OCGA 19-7-1(c)(2)):

  • Parents living together and not divorced: “the right shall be in the parents jointly.”
  • Either parent deceased: “the right shall be in the surviving parent.”
  • Parents divorced, separated, or living apart: “the right shall be in both parents.” If one parent “refuses to proceed or cannot be located,” the other parent “shall have the right to contract for representation on behalf of both parents, thereby binding both parents,” and, unless a motion is filed under paragraph (6), the judgment “shall be divided equally between the parents.”

Subsection (c)(3) adds that if “there is no right of action in a parent or parents under the above rules, the right of recovery shall be determined by Code Section 51-4-5.” Where the parents are divorced, separated, or living apart, either parent may move before trial “requesting the judge to apportion fairly any judgment amounts awarded in the case.” After a hearing on “each parent’s relationship with the deceased child,” the judge “shall fairly determine the percentage of the judgment to be awarded to each parent,” considering “permanent custody, control, and support, as well as any other factors found to be pertinent,” and the decision “shall not be disturbed absent an abuse of discretion” (OCGA 19-7-1(c)(6)). A child born out of wedlock is not barred from recovery (OCGA 19-7-1(c)(5)).

What the Claim Recovers

The full value of the life of the decedent means the value of the whole life without subtracting the necessary or personal expenses the decedent would have had, and “homicide” reaches a death caused by a crime, by criminal or other negligence, or by defectively manufactured property whether or not negligence was involved (OCGA 51-4-1(1), (2); OCGA 19-7-1(c)(4)). For purposes of the statute on arguing damages, noneconomic damages in a wrongful death case include the nonpecuniary part of the full value of the life (OCGA 9-10-184(a)(2)). The Supreme Court of Georgia has held that recovery is limited to the full value of the life and does not include the survivors’ mental anguish or emotional distress (OB-GYN Associates of Albany v. Littleton, 259 Ga. 663 (1989)).

The Court of Appeals applied that measure to a newborn in South Fulton Medical Center, Inc. v. Poe, 224 Ga. App. 107 (1996). A newborn brought to an emergency room the day after going home was triaged as semi-urgent, needing care within about eight hours, the family left within minutes, and the infant died within hours. Sitting as a full court and dividing 5-4, with the dissent disputing whether a provider relationship and causation were shown, the Court of Appeals affirmed a $1.85 million verdict against the hospital, holding that the jury was properly instructed on the full value of the infant’s life rather than the parents’ loss, that “loss of services may be awarded in a wrongful death action as part of the full value of the deceased’s life,” and that the full value covers both what the child’s expected life was worth economically and an intangible element that cannot be proved exactly.

A Decision From a Child’s Drowning

Whether a pool owner used reasonable care toward young children who could not appreciate the danger, and whether the parents were themselves negligent, can both be questions for the jury. In Gregory v. Johnson, 249 Ga. 151 (1982), the parents of a two-year-old brought a wrongful death action after the child drowned in an unfenced pool in a neighbor’s yard. The Supreme Court of Georgia reversed summary judgment for the owners, holding that issues remained as to the owners’ knowledge that children who could not appreciate the danger were present and whether the failure to erect a fence was a failure to exercise reasonable care. It also held that whether the parents had been negligent themselves was a question for the jury.

The Deadline

A wrongful-death action accrues at death, and the Supreme Court of Georgia declined to adopt a discovery rule for it (Miles v. Ashland Chemical Co., 261 Ga. 726 (1991)), so the two-year period for injuries to the person runs from the date of death (OCGA 9-3-33).

Frequently Asked Questions

Can parents recover for a child who died before birth?
For an unborn child, “the right to recover for the full value of the life of such child shall begin at the point at which a detectable human heartbeat, as such term is defined in Code Section 1-2-1, is present” (OCGA 19-7-1(c)(1)).

Can a parent recover for the parent’s own grief or distress?
Not in the wrongful death claim, which is limited to the full value of the child’s life (OB-GYN Associates of Albany v. Littleton). A parent who was physically injured in the same crash and suffered distress from witnessing the child’s injuries and death may pursue a separate claim for negligent infliction of emotional distress (Lee v. State Farm Mutual Insurance Co., 272 Ga. 583 (2000)).

Who recovers the funeral and medical bills?
When a death results from a crime or from criminal or other negligence, the personal representative of the deceased is entitled to recover the funeral, medical, and other necessary expenses resulting from the injury and death (OCGA 51-4-5(b)).

What if an adult child is killed by the child’s own spouse?
The Supreme Court of Georgia held in Carringer v. Rodgers, 276 Ga. 359 (2003), that the parent of a child murdered by the surviving spouse has standing to sue the spouse and others who caused the death, and may recover the full value of the child’s life.

  • OCGA 51-4-4; OCGA 19-7-1(c)(1)-(6); OCGA 51-4-5 (as referred to in OCGA 19-7-1(c)(3)); OCGA 53-1-5 (as referred to in OCGA 51-4-4)
  • OCGA 51-4-1(1), (2); OCGA 9-10-184(a)(2); OCGA 51-4-5(b)
  • OB-GYN Associates of Albany v. Littleton, 259 Ga. 663 (1989); Lee v. State Farm Mutual Insurance Co., 272 Ga. 583 (2000); South Fulton Medical Center, Inc. v. Poe, 224 Ga. App. 107 (1996); Carringer v. Rodgers, 276 Ga. 359 (2003)
  • Gregory v. Johnson, 249 Ga. 151 (1982); Miles v. Ashland Chemical Co., 261 Ga. 726 (1991); OCGA 9-3-33

Disclaimer

This article provides general information about wrongful death claims for the death of a child under Georgia law. It is not legal advice and does not create an attorney-client relationship. Who may sue, and how a recovery is divided, depend on the specific family circumstances and current authority. A family that has lost a child should consult a licensed Georgia attorney about the particular situation.

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