When you have lost someone close, filing a wrongful death lawsuit may not be your first thought. But the impact of one’s death can be more than just an emotional trauma. It’s often financial as well. For many, wrongful death claims also provide a means of accountability for careless, reckless, or even criminal acts, and can serve as a catalyst for meaningful change so that your loved one’s death is not in vain.
If you are thinking about filing a claim, it’s important to understand the wrongful death statute of limitations in Georgia.
A statute of limitations is a prescribed amount of time you have for bringing certain kinds of legal action.
In general, you have two years from the date of the person’s death in which to file a claim. That might sound like a fair amount of time but consider that wrongful death cases can be complex with sizable damages at stake. Plus, the sooner your attorney can start investigating your claim, the better your odds of preserving invaluable evidence, witness testimony, etc.
There is no rule that says you must wait the full two years to file. For example, in the July 2019 death of Atlanta toddler Anthony Charles Hicks III who died after topping out a window in a common area of his family’s Buckhead apartment, our wrongful death lawyers helped his parents to file a wrongful death claim within just six months.
However, there are many possible exceptions to the wrongful death statute of limitations in Georgia. These can lengthen or shorten the amount of time in which you may file. Our Atlanta wrongful death attorneys offer an overview here, but it’s important to consult with a lawyer about the specifics of your case to determine if an exception applies.
What is a “Wrongful” Death?
A wrongful death claim is one for civil damages awarded to the survivors of those who died because of another’s negligent or criminal act.
“Negligence” is the failure to use reasonable care when one had a duty to do so. Although wrongful death cases are separate from criminal actions, they can stem from an act that also constitutes a crime.
Defendants in wrongful death cases can be another person or it may be a business.
The main difference in a wrongful death case versus a personal injury case is that it isn’t the person who was injured who files the claim but the family members or a person representing the estate of the deceased person.
What Circumstances Might Extend – or Shorten – the Wrongful Death Statute of Limitations?
Although most wrongful death claims must be filed in two years, the circumstances that may alter the time frame include:
- A criminal charge. As noted in O.C.G.A. § 9-3-99, the statute of limitations on wrongful death claims (or any tort action) may be “tolled” (extended) while any criminal prosecution arising from the incident is pending. That applies to all those accused of crimes connected to the incident, not just those who are named as defendants in the civil case. A plaintiff will then have two years from the time the criminal charge is resolved in which to file their claim.
- An underage plaintiff. If the person with the right to sue for wrongful death has not yet turned 18 at the time of the death, he or she will have until they are 20 (or 2 years after their 18th birthday) in which to file.
- An unrepresented estate of parties. According to O.C.G.A. § 9-3-92, if either a plaintiff or defendant in a case dies and his/her estate goes unrepresented (with no executor or administrator appointed), the statute of limitations can be tolled up to five years.
- Claims against county governments. If you’re suing a county government agency for wrongful death, you still have two years in which to file a claim. However, you also need to give notice of that claim within 12 months. If the plaintiff is a minor, they have 12 months – instead of two years – after turning 18 in which to file.
- Claims against cities. If you’re filing a claim for wrongful death against a city government agency, you need to send notice of claim within six months of the death. You still have two years in which to file the actual lawsuit.
- Claims against state government entities. If you’re suing the state, you need to give notice of the claim within 12 months. This notice needs to be sent in writing, certified, and sent to the Risk Management Division of the Department of Administrative Services. Your attorney can draw up this notice for you and ensure you meet the proper requirements and deadlines.
- Defendant leaves Georgia. If a defendant leaves the state, O.C.G.A. § 9-3-94 states that the time of that absence won’t be counted/estimated in his/her favor. In other words, the statute of limitations may be tolled until they return.
If you have questions about Georgia’s statute of limitations in wrongful death cases, our longtime Atlanta wrongful death attorneys are available with answers in a free initial consultation.
The foregoing answers are not legal advice and are merely a general overview. You are advised to consult a lawyer to address your specific situation. For more information or to inquire about a free consultation, contact Stephen D. Apolinsky, an experienced Atlanta injury attorney, at Apolinsky & Associates at (404) 377-9191 or email him at steve@aa-legal.com.
