When a decedent is killed by a third party’s criminal act, a wrongful death claim can be brought against that party in civil court, separate from any criminal prosecution. Civil liability does not depend on a criminal conviction; the standard of proof is preponderance of the evidence rather than beyond a reasonable doubt. Claims can also be brought against property owners or other entities whose negligence enabled the criminal act, such as a negligent security claim against a venue where the killing occurred. The criminal defendant’s inability to pay a civil judgment often makes the third-party negligence claim against a deeper-pocketed defendant the more practical avenue for recovery. Evidence gathered in the criminal investigation is frequently relevant to the civil case and may be obtained through appropriate discovery channels. A criminal conviction of the perpetrator can have collateral estoppel effect in the civil case, preventing the convicted party from relitigating the factual issues that were necessarily decided in the criminal proceeding. However, an acquittal does not preclude civil liability because the civil standard of proof (preponderance of the evidence) is lower than the criminal standard (beyond a reasonable doubt). For the statutory framework governing negligent security claims against property owners whose negligence enabled the criminal act, including the SB 68 reforms that took effect in April 2025, see this series’ coverage of negligent security claims and retailer duties regarding third-party criminal acts.
88.1. How does a Georgia wrongful death plaintiff establish civil liability against a criminal defendant when there has been no criminal conviction?
The plaintiff presents evidence meeting the civil preponderance of the evidence standard, which requires showing that it is more likely than not that the defendant caused the decedent’s death. This is a substantially lower burden than the criminal beyond a reasonable doubt standard. Witness testimony, physical evidence, surveillance footage, forensic analysis, and the defendant’s own statements can all establish civil liability independently of the criminal case. A criminal acquittal does not bar a civil wrongful death action because the two proceedings apply different evidentiary standards.
88.2. What evidence from a criminal investigation is admissible in a Georgia civil wrongful death case?
Police reports, witness statements collected during the criminal investigation, forensic evidence including DNA analysis and ballistics reports, crime scene photographs, autopsy reports, toxicology results, and physical evidence recovered by law enforcement are generally available through civil discovery. The admissibility of specific items is governed by Georgia’s civil evidence rules rather than the criminal rules of evidence. Some investigative materials may be subject to privilege or ongoing investigation protections that limit disclosure until the criminal case concludes.
88.3. How does Georgia handle the civil wrongful death case when the criminal defendant invokes the Fifth Amendment?
In civil proceedings, a defendant may invoke the Fifth Amendment privilege against self-incrimination to avoid testifying if the testimony could expose them to criminal liability. However, unlike in criminal cases, the jury in a civil proceeding may draw an adverse inference from the defendant’s refusal to testify. This means the jury can infer that the defendant’s testimony, if given, would have been unfavorable to their position. The adverse inference can significantly benefit the plaintiff’s case when the criminal defendant refuses to testify about the circumstances of the killing.
88.4. How does Georgia treat wrongful death claims against a property owner whose negligence enabled a criminal killing?
These are negligent security claims brought under the general premises liability framework. The plaintiff must show that the property owner knew or should have known that criminal activity was foreseeable at the location and that the owner failed to take reasonable security measures that could have prevented or deterred the attack. Prior similar criminal incidents at the same location or in the immediate vicinity are the primary evidence of foreseeability. Inadequate lighting, broken locks, absent security personnel, and non-functioning surveillance systems can all support the claim that the owner’s security failures enabled the criminal act.
88.5. What discovery can a Georgia wrongful death plaintiff obtain from law enforcement agencies investigating the death?
Plaintiffs can seek police reports, incident reports, supplemental investigation reports, forensic lab results, crime scene processing records, witness interview transcripts or summaries, physical evidence logs, and surveillance footage collected by law enforcement. Some materials may be withheld during an active criminal investigation under Georgia’s Open Records Act exemptions. Once the criminal case concludes, the investigation file generally becomes more accessible. Plaintiffs may also subpoena individual officers for deposition testimony about their observations and investigative findings.
88.6. How does Georgia handle wrongful death claims when the criminal perpetrator is deceased or incarcerated with no assets?
When the criminal perpetrator is judgment-proof due to death, incarceration, or lack of assets, the negligent security claim against a property owner, employer, or other entity with insurance coverage becomes the primary practical avenue for recovery. The plaintiff focuses on identifying all potentially responsible parties whose negligence enabled the criminal act and who carry liability insurance. The criminal perpetrator may still be named as a defendant for fault allocation purposes, and any fault assigned to the perpetrator reduces the recovery available from the remaining defendants under Georgia’s proportionate liability framework.
88.7. Can a Georgia wrongful death plaintiff seek punitive damages against the criminal perpetrator in a civil action?
Yes. The criminal perpetrator’s intentional conduct in killing the decedent satisfies the standard for punitive damages under Georgia law because intentional infliction of harm demonstrates the willful misconduct, malice, or conscious indifference required by O.C.G.A. § 51-12-5.1. The specific intent exception to the $250,000 punitive damages cap also applies to intentional criminal conduct, removing the cap entirely. However, a judgment-proof criminal defendant makes punitive damages practically uncollectable, so the punitive damages claim against the perpetrator may have more symbolic than financial significance.
88.8. How does Georgia treat evidence of the decedent’s own criminal history when it is raised by the defendant in a wrongful death case?
The defendant may attempt to introduce the decedent’s criminal history to support comparative fault arguments or to challenge the damages valuation. Georgia courts evaluate the relevance of the criminal history under the rules of evidence, weighing its probative value against the potential for unfair prejudice. Criminal history that is directly related to the circumstances of the death, such as evidence that the decedent was engaged in criminal activity at the time of the fatal incident, is more likely to be admitted. Remote or unrelated criminal history may be excluded as unfairly prejudicial.
Disclaimer: This content is provided for informational and educational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this material. Georgia law is subject to change through new legislation and court decisions. Always consult a qualified Georgia attorney for advice specific to your situation.