Death cannot stop a civil lawsuit. Neither the death of the victim nor the death of an assailant stops a civil action. Death only terminates a criminal prosecution, but the death of a perpetrator before or during civil litigation does not put an end to the proceeding.
Q: So, what happens to the civil action if a perpetrator dies before or during civil litigation?
A: Based on our firm’s experience, very seldom are perpetrators named as defendants in personal injury cases. Perpetrators or assailants are more often than not without the wherewithal to fully compensate a victim of assault or abuse. Unfortunately, insurance is simply not available for deliberate wrongful acts.
If the perpetrator does have the means to warrant being named in a civil case but dies before or during litigation, the deceased defendant’s estate becomes the defendant.
Q: What happens to the civil action if a claimant or plaintiff dies before or during civil litigation?
A: If a victim dies before the commencement of a civil action, the right to bring an action belongs first to the spouse of the victim.
- If there is not a spouse, that right passes to the children of the victim.
- If there is not a spouse and there are no children of the deceased, the right of action belongs to the parents of the victim.
- If there is not a spouse, and there are no children and no parents surviving the victim, the right of action would then belong to the victim’s siblings.
If a civil lawsuit for an assault or battery was already filed by the victim who later dies, and the death is due to or caused by the assault, the civil action evolves into a wrongful death action and that action becomes the right of the plaintiff’s estate. (Georgia’s wrongful death statute is codified in O.C.G.A. § 51-4-1 et seq. which outlines the rights of survivors in legal actions and the types of damages available.)
When a victim or their family are murdered by an individual, we look beyond the perpetrator to the ‘why’.
- Did the negligence of someone or some entity allow or contribute to the injuries?
- Was the apartment complex a hot bed of criminal activity?
- Was there considerable crime or gang activity on or in the immediate area of the property and did the ownership and management respond properly to the dangerous conditions on the property?
- In the parking deck, was access properly controlled? Was surveillance adequate?
- At the mall or shopping center, was security for the premises adequate or reasonable? Were the security agents present properly trained?
Neither the death of a claimant/plaintiff nor the death of an assailant or wrongdoer forecloses pursuit or the continuing pursuit of a civil action.
We at Isenberg & Hewitt have more than 30 years of experience helping victims of crime and their families get justice, even in the event of death of the plaintiff or claimant. Whether you have a wrongful death case or the perpetrator is deceased, you may still have a viable civil lawsuit. Not sure if your case is a good candidate for civil litigation? Have more questions or need clarification? Contact us or call 770-351-4400.