In Garner v. Acadia Healthcare Company, Inc., 370 Ga. App. 146 (2023), Appellants alleged that William had been missing since his discharge from the facility and that Appellees breached a duty of care owed to William to keep him safe. The Appellee/Defendant filed a motion to dismiss for failure to state a claim. The Superior Court dismissed the action, and the Court of Appeals affirmed that decision.

The wrongful death action was filed by the “Conservator of a Missing Individual” after William Garner went missing. Acadia responded, alleging the Conservator had no standing to file the action. Specifically, it argued the plaintiff failed to meet the requirements of OCGA § 51-4-5.

The Court of Appeals held “[i]t is well established that the wrongful-death statute is an act in derogation of the common law, which means that, when a court is called upon to interpret this statute, ‘the express language of the Act will be followed and no exceptions to the requirements of the Act will be read into the statute by the courts.'” That statute provides that a surviving spouse or child may bring a wrongful death action or, if there is not a surviving spouse or child capable of bringing the action, it may be brought by the administrator or executor of the decedent. Since the plaintiff had not been appointed administrator or executor, she did not meet the statutory requirement. The Court rejected her argument that the  “case can still proceed because, under the probate code, a legal presumption of death arises once a person has been missing for a period of four years. … Even assuming that this Court could rely on the rebuttable presumption in the probate code to establish that a death had occurred in this case, this Court cannot create a judicial exception to the statute establishing who may bring a wrongful death action.”

What is a wrongful death action?

In Georgia, a wrongful death action is a claim brought against a wrong-doer (tortfeasor) who causes someone’s death. Usually is belongs to the surviving spouse and children. See O.C.G.A. § 51-4-2. A parent may sue for the wrongful death of a child. See O.C.G.A. § 51-4-4. The code provides “[n]o recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent or of the decedent’s estate.” Section 51-4-2(e). The types of damages recoverable typically include:

• Pain and suffering
• Emotional anguish
• Grief and sorrow
• Medical bills and Funeral expenses
• Unearned wages/Loss of support
• Loss of services
• Loss of consortium and other intangibles
• Exemplary/punative damages (if appropriate)
• Lost prospect of inheritance (this seems to be the “rush to death” claim caveators brought in  Estate of Ferrell, 363 Ga. App. 8 (2022))

Claims for personal injury, conscious physical and mental pain and suffering prior to death, and other losses suffered prior to death belong to the estate and are recovered by the administrator or executor.