How the Law Allows the Parent of Decedent to Bring Suit for the Death of a Child

Lawyers that handle wrongful death cases will tell you that in the old days, there was no case to be brought when a person died through the wrongdoing of another. The Georgia legislature passed the Georgia Wrongful Death laws to impose “… a penalty upon the person who causes the death of another by negligence, the penalty to go to the person injured.’ ” Brock v. Wedincamp, 253 Ga.App. 275, 281, 558 S.E.2d 836 (2002).

Each case is different though and a colleague recently called to ask whether the divorced mother of a child could sue the father of the child for causing the child’s death on a four wheeler. The answer is yes. I thought I would include the research here so that others can benefit.

Normally, when a person dies, their spouse has the right to bring the wrongful death claim for the value of the life, although children will be entitled to a portion if they exist. If the person is a child, then the right vests in the parents. If there is no spouse and the person has no children, then the right reverts upstream to the deceased person’s parents.

In the Georgia wrongful death situation we are addressing though, the question is complicated. Normally, the right of recovery for the death of the child would vest in the mother and father. Here though, the father is the at fault party and you cannot sue yourself.
In the case of Belluso v. Tant, 258 Ga. App. 453, 574 S.E.2d 595 (2002), the Court made it clear that the Superior Court has the equity power to strip claims from the wrongdoer and to preserve the right of recovery at the same time. In Belluso, the Court held that it was within the equity powers of the Court to allow the parent of the deceased to sue the negligent spouse for the death of the child, in effect allowing the Georgia wrongful death claim to leap over the wrongdoer.

Based on the logic of that decision, it would appear that the divorced mother of the child can sue the father. Keep in mind that if they were still married, spousal immunity might bar the claim. Remember that serious injury cases are complicated and an Attorney with real experience makes all the difference in the outcome.