Survival Actions in Georgia: Claims for the Deceased’s Pre-Death Losses

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When a person injured by someone else’s wrongful act later dies, Georgia law does not let the claim for that person’s own injuries vanish. OCGA 9-2-41 keeps it alive and, where no one else has a right of survivorship, sends it to the deceased’s personal representative, separately from the wrongful death claim that a spouse or child brings for the full value of the life. A claim for the decedent’s pain and suffering then turns on evidence that the decedent was conscious of it.

Two Claims After a Death

Feature Estate's claim for the decedent's injuries Wrongful death claim
Statute OCGA 9-2-41 OCGA 51-4-1 and 51-4-2; OCGA 51-4-4 for a child's death
Who brings it The personal representative of the deceased plaintiff The surviving spouse or, if none, a child or children (OCGA 51-4-2(a))
What it seeks Damages the decedent could have sought for "homicide, injury to the person, or injury to property" The full value of the decedent's life, as shown by the evidence (OCGA 51-4-2(a))

OCGA 9-2-41 provides that no “action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property” abates “by the death of either party.” When the plaintiff dies and no other person has a right of survivorship, the cause of action “shall survive to the personal representative of the deceased plaintiff.” The same section carries a claim forward against a wrongdoer who dies, through the wrongdoer’s personal representative, but without punitive damages against that representative.

The wrongful death measure is the full value of the decedent’s life, without deducting the decedent’s necessary or personal expenses had the decedent lived (OCGA 51-4-1(1)), and the right to recover for the death of a child is governed by OCGA 19-7-1 and 53-1-5 (OCGA 51-4-4).

The two claims can appear in one case. In Rai v. Reid, 294 Ga. 270 (2013), the plaintiff sued as the minor child’s next friend for wrongful death and as administrator of the murdered mother’s estate for the mother’s pain and suffering, and the jury awarded $2.5 million to the child and $100,000 to the estate. In Geary v. Estate of Tapley, No. A24A0978 (Ga. Ct. App. Oct. 25, 2024), a medical malpractice case, the patient’s widow sued individually and as executor of the patient’s estate, and the jury awarded $2.5 million for pain and suffering and $12.5 million for wrongful death.

What the Estate Recovers

Pain and suffering. The decedent’s conscious pain and suffering can be the whole of the estate’s case. In Cannon v. Barnes, 357 Ga. App. 228 (2020), a truck crossed the median of an interstate and struck an oncoming car, killing both adults in it. The only claim that remained for trial was the wife’s conscious pain and suffering, brought by the wife’s mother as administrator of the wife’s estate, and the jury awarded $3,000,000 with 55 percent of fault assigned to the truck driver and 45 percent to another driver. The Court of Appeals affirmed.

Funeral, medical, and other necessary expenses. The statute that addresses these expenses sits in the wrongful death chapter: “When death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person” (OCGA 51-4-5(b)). The right belongs to the personal representative, not to the survivors who bring the claim under OCGA 51-4-2.

The Two-Year Limit on the Estate’s Claim

An action for injuries to the person must be brought within two years after the right of action accrues, subject to the exceptions the statute names (OCGA 9-3-33). In Rai v. Reid, the murder occurred on April 26, 2000, and the complaint was filed on September 18, 2008. The Supreme Court held that the estate’s pain and suffering claim “was time-barred as outside the two-year statute of limitation for personal injury actions under OCGA § 9-3-33, as the running of the limitation period was not tolled for fraud by OCGA § 9-3-96.” Concealment of the defendant’s role in a murder-for-hire plot did not qualify, and the court reversed the $100,000 judgment for the estate. The wrongful death judgment for the child stood. The court held that the trial court, exercising its equitable authority, could allow the child’s claim to proceed after the child’s father declined to pursue it, and that it was not error to refuse to let the jury consider the limitation defense to that claim.

How Long the Person Survived

The length of survival matters because the estate’s claim depends on the decedent’s experience before death. Cannon states the rule for a death that follows an impact immediately: “For pre-impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury” (quoting Department of Transportation v. Dupree, 256 Ga. App. 668 (2002)). The evidence there included that the decedent’s mother, on the telephone with the decedent, heard the decedent scream “oh my god, look at that” and then scream the husband’s name, seconds before the crash. The court held that the decedent’s pregnancy and the presence of the husband and child in the car “had relevance to her fright, shock, and mental suffering prior to the collision.”

Geary shows that the consciousness requirement has limits. The patient there died about 30 hours after a bladder perforation during prostate surgery. The defendant argued that the patient was unresponsive for “most, if not all,” of the period and asked for a charge that “there must be some evidence that the deceased at some point in time was conscious of his imminent death.” The Court of Appeals held that the requested charge “is based on case law that involved a claim for damages for a person’s pain and suffering experienced prior to instantaneous or near instantaneous death,” that the defendant “has not cited any case in which such a charge was given when the decedent lived for more than 30 hours after the alleged negligence,” and that the trial court’s pattern charge was correct. That charge listed factors for the jury to consider, from interference with normal living to actual physical pain and mental anguish, and told the jury that the questions of whether, how much, and how long the patient suffered were for the jury to decide. The court affirmed the $15 million verdict, reasoning that the trial court did not abuse its discretion in refusing to disturb the award of $2.5 million for pain and suffering and $12.5 million for wrongful death. Geary also quotes an earlier decision, Grant v. Georgia Pacific Corp., 239 Ga. App. 748 (1999), for the opposite case: “Where . . . the medical evidence is that death was instantaneous, and there is no evidence the decedent exhibited consciousness of pain, recovery for the decedent’s pain and suffering is not permitted.”

Frequently Asked Questions

How is a wrongful death recovery divided among the family?
Equally among the surviving spouse and the children per capita, with the descendants of a child taking per stirpes, except that the surviving spouse receives no less than one-third (OCGA 51-4-2(d)).

Can the decedent’s creditors reach the wrongful death recovery?
No. “No recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent or of the decedent’s estate” (OCGA 51-4-2(e)).

Does the time limit run while no one has been appointed to represent the estate?
The time between the death and the start of representation of the estate, or between one administration and the next, is not counted against the estate in calculating a limitation period, up to five years; once five years pass, the limitation period begins to run even if the cause of action accrued after the death (OCGA 9-3-92).

Who brings the wrongful death claim when there is no spouse or child?
Where no one has the right to sue under OCGA 51-4-2 or 51-4-4, the claim belongs to the decedent’s administrator or executor, who holds any recovery for the next of kin (OCGA 51-4-5(a)).

  • OCGA 9-2-41
  • OCGA 9-3-33; OCGA 9-3-92; OCGA 9-3-96 (as discussed in Rai v. Reid)
  • OCGA 51-4-1, 51-4-2, 51-4-4, 51-4-5
  • Rai v. Reid, 294 Ga. 270 (2013)
  • Cannon v. Barnes, 357 Ga. App. 228 (2020)
  • Department of Transportation v. Dupree, 256 Ga. App. 668 (2002) (as quoted in Cannon v. Barnes)
  • Geary v. Estate of Tapley, No. A24A0978 (Ga. Ct. App. Oct. 25, 2024)
  • Grant v. Georgia Pacific Corp., 239 Ga. App. 748 (1999) (as quoted in Geary v. Estate of Tapley)

Disclaimer

This article provides general information about survival actions and the deceased’s pre-death losses under Georgia law. It is not legal advice and does not create an attorney-client relationship. The relationship between the estate’s claim and the wrongful death claim depends on the facts and on probate. A family dealing with a death caused by negligence in Georgia should consult a licensed Georgia attorney promptly about the particular situation.

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