As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985). Like with the wrongful death claim itself, punitive damages were not allowed under common law. They are statutory in nature, and consequently, they are strictly construed.
The relevant statute for punitive damages under Georgia law is O.C.G.A. § 51-12-5.1. A party must specifically plead punitive damages in their complaint in order to receive them. As stated in the statue, the purpose of punitive damages is not to compensate the plaintiff, but to “punish, penalize, or deter the defendant.” Georgia law raises the standard of proof for an award of punitive damages from the preponderance of the evidence to the higher “clear and convincing” evidentiary standard. A plaintiff is required to prove by “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b)-(d).
There are significant differences between a Georgia punitive damages award in product liability cases and non-product liability cases. One distinction worth noting here is that while there is no limit to an award of punitive damages in a product liability case, in a non-product liability case, absent a finding that the “defendant acted, or failed to act, with the specific intent to cause harm,” or that the defendant was “under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription,” or toxic vapor when the defendant acted, or failed to act, Georgia law places a $250,000.00 limit on any punitive damages award. O.C.G.A. § 51-12-5.1(e)-(g). When reviewing the amount awarded, although a court will “not mechanically look to the ratio between general and punitive damages to resolve the question of excessiveness,” the ratio is still a valid tool to determine “whether the jury’s award was infected by undue prejudice or bias.” Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487, 494 (2013).
An award for punitive damages is determined in stages. Generally, this is done via bifurcation whereby the first phase determines liability and general damages and whether an award of punitive damages is proper, “specifically through an appropriate form of verdict.” The next phase will then determine, via “such evidence as is relevant,” the amount of the punitive damages award. O.C.G.A. § 51-12-5.1(d)(1)-(2). Courts, however, also have the discretion to conduct a trifurcated process where liability and compensatory damages are dealt with in the first phase, liability for punitive damages in the second phase, and the amount of punitive damages determined in the third phase. Bolden v. Ruppenthal, 286 Ga. App. 800, 804 (2007).
As noted above, in the context of a wrongful death lawsuit, punitive damages are available as part of an estate claim, but not the wrongful death itself; a practitioner must not confuse the two. Thus, one cannot argue, or even tangentially suggest, to a jury that it should base a wrongful death award on punishment or deterrence of the conduct at-issue. Gielow v. Strickland, 185 Ga. App. 85, 86 (1987). Instead, a practitioner must allege any claims for punitive damages in the estate’s claims. See generally Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487 (2013) (upholding jury’s punitive damage award to the estate arising out of defendant’s medical malpractice).
The bottom line is that punitive damages are estate claims and should be pursued only in cases where defendant’s conduct is particularly egregious, and the practitioner is prepared to prove they are entitled to punitive damages by “clear and convincing evidence.” Remember, a failure to properly assign the claim to the appropriate party (i.e. the Estate) will result in the court refusing to even hear the merits of a punitive damages claim. See Georgia Osteopathic Hosp., Inc. v. O’Neal, 198 Ga. App. 770, 772-73 (1991) (noting that punitive damages are not available in a wrongful death action and the deceased’s children, who had not been appointed as Administers of the estate, lacked standing to pursue damages belonging to the estate).
If you have a wrongful death claim you would like to discuss, it is important that you speak to an experienced lawyer. Finch McCranie, LLP has represented families in wrongful death lawsuits in the Metro Atlanta area and throughout the State of Georgia for over 50 years. If a loved one has died and you believe a wrongful death claim may be appropriate, please contact us at 404-658-9070 for a free consultation.