When it comes to a lawsuit for Georgia wrongful death damages, the Georgia statute has created a potential conflict between the decendent's spouse and the deceased's children. Despite the conflict, the courts have held firm to their decision to enforce the statute as written, making only a single exception in a situation that truly had created an outrageous result.
If someone is killed in Newnan, Georgia, for example, then the spouse has the right to bring a Newnan wrongful death lawsuit. The children have no right to sue - according to the Georgia statute, O.C.G.A. § 51-4-2, the suit belongs to the spouse. The Supreme Court extended this holding even to situations where the spouse refused to sue, stating that the only remedy for the children would be to sue the spouse who had failed to bring suit on their behalf. The court explained that the right to sue "adequately protects any property interest that children might have in an action for a parent's wrongful death." The Georgia wrongful death statute "created a procedure intended to enable children to share in any proceeds of such an action," but not "in control of such an action." The Court found that the legislature had made a constitutionally adequate decision given this "delicate and emotional area of the law." O'Kelley v. Hosp. Auth., 256 Ga. 373, 374 (Ga. 1986). The O'Kelley case involved a Fulton County wrongful death lawsuit.
The Supreme Court made a small exception to the rule in Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215-216 (Ga. 1991), a Colquitt County wrongful death lawsuit. In Brown, a woman had been killed in a Colquitt County tractor-trailer wreck, in which her car was struck by a large, tractor-trailer being operated by an employee of the Liberty Oil company. The husband abandoned the couple's children after the car accident, and could not be found to bring suit (the children also argued that he was unwilling to bring suit), so the woman's children sued for her wrongful death. The trial court dismissed the claim, reasoning that under Mack, the husband was entitled to make a choice not to sue, and since the husband was alive here, the fact that he had not sued was tantamount to a decision not to sue, so the children had no right to bring a wrongful death suit The Supreme Court overruled prior cases Mack v. Moore, 256 Ga. 138, 138-139 (Ga. 1986) (see discussion in yesterday's blog entry, )and O'Kelley to the extent those cases supported the trial court's ruling, concluding that the trial court should have exercised its equitable powers to preserve the wrongful death claim. (For discussion about Mack, see Georgia's Wrongful Death Statute: Conflict Between the Spouse and the Children).
Our Constitution vests general equitable powers in the superior court. We hold that the factual circumstances of this case demand the exercise of those powers to preserve the rights of the minor children. The trial court should have allowed these minors, who have no remedy at law, to maintain an action for the wrongful death of their mother. Any contrary holding in Mack, supra, and in O'Kelley, supra, is overruled.
Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215-216 (Ga. 1991).
Although the court did make a limited exception in Brown, the courts have shown no inclination to expand the exception to cover other occasions where the spouse fails to represent the children properly: "[T]he general rule still applies: the surviving spouse has exclusive standing to bring a wrongful death action. The only exception to this rule arises "[i]n rare circumstances" . . . in the limited context of a superior court exercising its equitable powers to allow the surviving children with no remedy at law under certain circumstances to pursue a wrongful death claim." Blackmon v. Tenet Healthsystem Spalding, Inc., 288 Ga. App. 137, 146 (Ga. Ct. App. 2007), overruled on other grounds by 284 Ga. 369, 667 S.E.2d 348 (2008).