How Does the Deceased Person’s Own Fault Affect a Georgia Wrongful Death Claim?
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It can reduce the recovery or eliminate it. Georgia’s apportionment statute reduces damages in proportion to the claimant’s share of fault and bars any recovery when that share is 50 percent or more (O.C.G.A. § 51-12-33(a), (g)), and the Court of Appeals has applied that bar to the decedent’s share of fault in a wrongful death case. Whether the decedent’s share reached 50 percent is for the jury to decide except in “plain and undisputable cases”.
The rule in the statute
Section 51-12-33(a) directs the jury to “determine the percentage of fault of the plaintiff”, and the judge then reduces the damages “in proportion to his or her percentage of fault”. Section 51-12-33(g) adds that the plaintiff “shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed”.
In Reed v. Carolina Casualty Insurance Co. (2014), the Court of Appeals applied subsection (g) in a wrongful death action brought by a man’s parents, asking whether “the plaintiffs’ decedent was at least 50 percent responsible for his own death”. The decedent’s share of fault is the one measured.
Worked examples
For example, imagine a jury finds that the full value of the life is $2,000,000:
| Decedent's share of fault | Effect | Family's recovery |
|---|---|---|
| 0% | No reduction | $2,000,000 |
| 20% | Reduced by 20% (§ 51-12-33(a)) | $1,600,000 |
| 49% | Reduced by 49% | $1,020,000 |
| 50% | Barred (§ 51-12-33(g)) | $0 |
| 55% | Barred | $0 |
The step from 49 to 50 percent is the difference between a reduced award and nothing. The statute then divides the remaining award among the defendants according to each one’s share of fault, as separate liabilities rather than a joint one (§ 51-12-33(b)); see how damages are divided among multiple defendants.
Why the fault question goes to a jury
In Reed, the decedent had been drinking (a postmortem blood alcohol content of 0.095), took a highway curve too fast in the rain, lost control, and hit a tractor-trailer parked in an emergency lane; the truck driver had been cited for improper parking, and the parents argued their son would not have died in the fire but for the truck’s presence. The trial court ruled the son at least 50 percent at fault as a matter of law. The Court of Appeals reversed, noting that questions of negligence and proximate cause “are peculiarly matters for the jury” except in “plain and undisputable cases”.
Reed shows that evidence of the decedent’s own fault, even alcohol, does not by itself take the question away from the jury.
What the decedent’s fault does not change
- The measure of damages. The jury first values the life under § 51-4-1 and only then applies the fault reduction; see what “full value of the life” means.
- The other claims. The estate’s claim for the person’s own pre-death losses is a separate cause of action, decided alongside the wrongful death claim; see wrongful death versus the estate’s claim.
The general rule, with injury-case examples, is in Georgia’s 50 percent comparative fault rule.
Sources
- O.C.G.A. §§ 51-4-1, 51-12-33 (text as published March 2024, after the 2022 amendment by HB 961).
- Reed v. Carolina Casualty Insurance Co., 327 Ga. App. 130 (2014)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.