When a Georgia resident dies because of a criminal act (intentional homicide, assault resulting in death, vehicular homicide, or other crime), the civil wrongful death claim proceeds independently of any criminal prosecution. Both can move forward in parallel, each governed by its own rules and standards.
The criminal case and the civil wrongful death case run on independent tracks #
The criminal case prosecutes the wrongdoer under criminal law, with the State as plaintiff, the constitutional standard of proof beyond reasonable doubt, and consequences including imprisonment, probation, and restitution. The civil wrongful death case is brought by the statutory beneficiaries under O.C.G.A. § 51-4-2 with the preponderance-of-the-evidence standard, and money damages as the remedy.
The civil and criminal proceedings can move forward in parallel or sequentially. The civil verdict and the criminal verdict are independent. Civil liability can follow even when the criminal case ends in acquittal or non-prosecution.
Civil liability uses preponderance; criminal liability requires beyond reasonable doubt #
Criminal cases require proof beyond reasonable doubt: the highest standard in American law. Civil wrongful death cases require proof by a preponderance of the evidence: more likely than not. This difference can produce divergent outcomes from the same facts.
Criminal restitution does not displace the broader civil damages claim #
If the criminal defendant is convicted and ordered to pay restitution to the decedent’s family under O.C.G.A. § 17-14-2, that restitution is limited to documented economic losses and does not include pain and suffering, full value of life, or punitive damages. The civil claim remains available for those broader damages even when restitution is ordered.
A pending criminal case tolls the wrongful death deadline, but not the survival action #
Under O.C.G.A. § 9-3-99, the wrongful death SoL is tolled during criminal proceedings related to the death, up to a maximum of six years. The Georgia Court of Appeals in Harrison v. McAfee, 338 Ga. App. 393 (2016), construed this provision broadly to apply to causes of action arising from facts related to the alleged crime, regardless of whether the civil defendant is the criminal defendant.
The 2022 Hicks v. Universal Health Services, 874 S.E.2d 877 decision narrowed the tolling for survival actions. Survival actions do not toll under § 9-3-99 because the cause of action belongs to the survivors, not the deceased victim.
Intentional criminal conduct often supports uncapped punitive damages through the survival action #
Intentional criminal acts often satisfy the punitive damages threshold under O.C.G.A. § 51-12-5.1 (willful misconduct, fraud, malice, wantonness). The $250,000 cap on punitive damages does not apply in cases of specific intent to cause harm, removing the cap entirely in many intentional tort cases. Punitive damages are pursued through the survival action where the decedent had a viable pre-death claim.
Collecting civil judgments from convicted criminals presents practical obstacles #
A convicted criminal serving a prison sentence often has limited assets to satisfy a civil judgment. Practical collection paths include:
- Wage garnishment if the defendant earns income after release
- Liens against any real estate or other property
- Insurance coverage (homeowners insurance for intentional acts often excludes coverage, but exceptions may apply)
- Third-party defendants whose negligence enabled the criminal act (premises liability, negligent security)
Negligent security claims provide an alternative recovery path against property owners #
When a criminal act occurred on premises where the property owner had a duty to provide reasonable security and failed to do so, a parallel claim against the property owner may proceed. This claim does not depend on the criminal defendant’s solvency and often provides a more reliable recovery source. Negligent security claims require proof of foreseeable crime, inadequate security measures, and causation linking the inadequate security to the harm.
State-actor wrongful deaths may add federal civil rights claims under 42 U.S.C. § 1983 #
When the criminal act involved a state actor (police officer, jail employee, government employee), federal civil rights claims under 42 U.S.C. § 1983 may proceed alongside state wrongful death claims. These claims carry distinct standards, including qualified immunity (a federal doctrine that shields government officials from individual liability unless they violated a clearly established right), distinct damages frameworks, and distinct procedural rules from state wrongful death actions.
This article is for informational purposes only and does not constitute legal advice. Personal injury cases turn on specific facts and applicable law that vary by case. If you have been injured in Georgia and want to understand your legal options, consult a licensed Georgia personal injury attorney.