Can the defendant raise defenses against the family that it could have used against the decedent?

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Generally yes. A Georgia wrongful death claim is derived from the wrong done to the decedent, so a defendant can usually assert against the family the same defenses it could have raised against the decedent had the decedent lived to sue. The family steps into the decedent’s legal position, and the defenses travel with it.

Why the decedent’s defenses carry over

A wrongful death action is not a fresh, independent grievance untethered from the decedent’s own rights. It is built on the underlying tort committed against the decedent. Because the family’s claim rises or falls on whether the decedent could have recovered, the obstacles that would have limited or defeated the decedent’s claim apply to the family’s claim too. If the decedent could not have won on a given issue, the family generally cannot avoid that same issue by relabeling the claim as one for wrongful death.

Defenses that commonly carry over include:

  • The decedent’s comparative fault, which reduces the recovery and bars it at 50% or more under O.C.G.A. § 51-12-33.
  • Assumption of the risk by the decedent, where the facts support it.
  • A valid release or settlement the decedent signed before death covering the same claim.
  • Defenses going to whether the defendant breached any duty to the decedent at all.

Limits and nuances

The principle that defenses pass through is broad but not unlimited. A defense must be one that genuinely went to the decedent’s claim, not merely a circumstance personal to a particular family member. And some procedural features differ between the claims, since the wrongful death action is brought by the survivors and the survival action by the estate. The core point, however, holds across both: each is derivative of the decedent’s injury, so each is exposed to the decedent-based defenses. The decedent’s conduct and any prior resolution of the decedent’s claim can therefore shape, reduce, or even eliminate what the family recovers.

The bottom line

A defendant in a Georgia wrongful death case can generally raise the defenses it could have used against the decedent, because the family’s claim is derivative of the decedent’s own right of action. Comparative fault, assumption of risk, and a valid pre-death release are typical examples that carry over. The family does not gain a clean slate by suing for wrongful death; it inherits both the claim and the defenses that came with it.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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