What If the Deceased Was Partially at Fault?

Q: What if the deceased was partially at fault?

Under Georgia's modified comparative negligence law (O.C.G.A. § 51-12-33), you can still pursue a wrongful death claim if the deceased was partially at fault for the incident that caused their death, as long as the deceased's share of fault was less than 50 percent. However, the total recovery will be reduced by the deceased's percentage of fault. For example, if a wrongful death case is valued at $1 million and the deceased was 20 percent at fault, the recovery would be reduced to $800,000. If the deceased was 50 percent or more at fault, the family is completely barred from recovering any wrongful death damages.

If the person who died was partially responsible for the incident that caused their death, your family may still be able to pursue a wrongful death claim in Georgia, but the recovery will be reduced. Georgia follows a modified comparative negligence rule under O.C.G.A. § 51-12-33 that reduces the plaintiff’s recovery by the deceased’s percentage of fault. The critical threshold is 50 percent: if the deceased was 50 percent or more at fault, the family is completely barred from recovering any damages. If the deceased was less than 50 percent at fault, the family can still recover, though the amount will be proportionally reduced.

How Georgia’s Modified Comparative Negligence Works

Georgia’s comparative negligence system assigns a percentage of fault to each party involved in an incident. The plaintiff’s recovery is then reduced by the plaintiff’s percentage of fault. In a wrongful death case, the deceased’s fault is attributed to the claim.

Examples

Example 1: A truck driver runs a red light and kills a pedestrian. The jury finds the truck driver 100 percent at fault and values the wrongful death claim at $2 million. The family recovers the full $2 million.

Example 2: A car accident results in a fatality. The jury finds the deceased was 30 percent at fault for speeding and the other driver was 70 percent at fault for running a stop sign. The case is valued at $1.5 million. The family’s recovery is reduced by 30 percent to $1,050,000.

Example 3: A motorcycle accident results in a death. The jury finds the deceased motorcyclist was 50 percent at fault. Because the deceased’s fault equals or exceeds 50 percent, the family is completely barred from recovery and receives nothing.

The 50 Percent Bar

The most critical aspect of Georgia’s comparative negligence rule in wrongful death cases is the 50 percent threshold under O.C.G.A. § 51-12-33. If the deceased is found to be 50 percent or more at fault, the claim is entirely barred. There is no recovery at all, even if the defendant was also negligent.

This makes it essential to have an experienced attorney who can effectively challenge the defendant’s attempts to shift blame to the deceased. Insurance companies and defense attorneys routinely try to inflate the deceased’s percentage of fault because even a small increase can significantly reduce the recovery, and pushing it to 50 percent eliminates the claim entirely.

Common Fault Arguments in Wrongful Death Cases

Defendants and their insurance companies will look for any evidence that the deceased contributed to their own death. Common arguments include:

Speeding or traffic violations: Claiming the deceased was driving above the speed limit or violating traffic laws at the time of the accident
Not wearing a seatbelt: Arguing that the deceased’s injuries would have been less severe or survivable if they had been wearing a seatbelt. However, Georgia’s seatbelt law under O.C.G.A. § 40-8-76.1 limits the admissibility of seatbelt non-use as evidence in civil cases.
Distracted behavior: Alleging the deceased was on their phone, not paying attention, or otherwise distracted
Impairment: If toxicology results show the deceased had alcohol or drugs in their system, the defendant will use this to argue contributory fault
Jaywalking or failure to yield: In pedestrian death cases, arguing the deceased crossed outside a crosswalk or failed to yield to traffic
Failure to seek medical treatment: In medical malpractice cases, arguing the deceased delayed seeking treatment or failed to follow medical advice

How an Attorney Combats Fault Arguments

An experienced wrongful death attorney will fight to minimize the percentage of fault attributed to the deceased. Strategies include:

Thorough investigation: Gathering evidence that demonstrates the defendant’s primary responsibility, including witness testimony, physical evidence, electronic data, and expert analysis
Expert testimony: Using accident reconstruction experts, medical experts, and other specialists to counter the defendant’s fault arguments
Challenging the defendant’s evidence: Cross-examining defense witnesses, challenging the reliability of the defendant’s evidence, and exposing weaknesses in the defense’s fault theories
Contextualizing the deceased’s actions: Presenting evidence that any actions by the deceased were reasonable under the circumstances or were minor compared to the defendant’s negligence

Comparative Negligence Applies to All Defendants

When multiple defendants are involved, the jury assigns a percentage of fault to each party, including the deceased. Under Georgia law, each defendant is liable for their own percentage of fault. For example, if the jury finds the truck driver 40 percent at fault, the trucking company 40 percent at fault, and the deceased 20 percent at fault, the family can recover 80 percent of the total damages (the combined fault of the truck driver and trucking company). Georgia’s apportionment statute under O.C.G.A. § 51-12-33 governs how fault is allocated among multiple parties.

Does Partial Fault Affect Punitive Damages?

The deceased’s partial fault does not necessarily bar punitive damages. Punitive damages under O.C.G.A. § 51-12-5.1 are awarded based on the defendant’s conduct, not the plaintiff’s. If the defendant’s behavior was willful, wanton, or showed a conscious disregard for the safety of others, punitive damages may still be available even if the deceased bore some fault for the incident. However, the jury may consider the deceased’s conduct when determining the overall award.

Do Not Assume Your Case Is Lost

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If you have been injured in an accident in Georgia, the experienced attorneys at Wetherington Law Firm can help you understand your legal options. We handle personal injury cases on a contingency fee basis, which means you pay nothing unless we recover compensation for you.

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