In a Georgia wrongful death case, the conduct of the person who died can become part of the defense. A defendant who is accused of causing a death may argue that the decedent was partly or wholly responsible for the events that led to it. Georgia law allows this kind of defense, but the state does not follow the strict common law rule that any fault on the injured party’s side completely bars recovery. Instead, Georgia uses a modified comparative negligence system that can reduce or, in some situations, eliminate a recovery depending on how fault is divided.
Contributory Negligence Versus Comparative Negligence
The term contributory negligence historically described a harsh rule under which a plaintiff who contributed in any degree to the harm could recover nothing. A small number of jurisdictions still follow that pure contributory negligence approach. Georgia does not. Georgia applies a modified comparative negligence system, and many sources use the words contributory and comparative interchangeably when describing how the conduct of the injured party affects a claim in this state.
Under the comparative negligence framework, the fact finder assigns a percentage of fault to each party. The plaintiff’s recovery is then reduced in proportion to the fault attributed to the plaintiff’s side. A defendant in a wrongful death case is therefore permitted to raise the issue, and doing so is a recognized and common defense.
Georgia’s Modified Comparative Negligence Statute
The governing statute is O.C.G.A. section 51-12-33. It directs that a damages award be reduced and apportioned according to each party’s percentage of fault. The statute also contains what is often called the 50 percent bar. If the party seeking damages is found to be 50 percent or more at fault for the injury or death, that party recovers nothing. If the plaintiff’s share of fault is less than 50 percent, recovery is allowed but is reduced by the plaintiff’s percentage.
For example, if a jury determines that the full value of a decedent’s life is a particular sum and assigns 20 percent of the fault to the decedent, the recovery on a claim tied to the decedent’s conduct is reduced by that 20 percent. If the jury instead assigns 50 percent or more of the fault to the decedent, the claim tied to that conduct is barred.
How the Defense Applies to a Wrongful Death Claim
A Georgia wrongful death claim seeks the full value of the life of the person who died. Because the person who died is not present to have his or her own conduct judged separately, the negligence of the decedent is generally attributed to the wrongful death claim. If the decedent was partly at fault for the fatal event, the same comparative negligence reduction applies to the wrongful death recovery. If the decedent was 50 percent or more at fault, the wrongful death claim can be barred entirely.
This is distinct from any negligence of the surviving family members who bring the claim. The conduct of a surviving spouse or child is ordinarily not at issue, because the claim is built on the value of the decedent’s life and the decedent’s relationship to the wrongful event. The decedent’s own degree of fault is the figure that drives the comparative negligence analysis in most wrongful death cases.
Apportionment Among Multiple Parties
O.C.G.A. section 51-12-33 also governs how fault is apportioned when more than one person or entity contributed to a death. The fact finder may consider the fault of the named defendants and, in appropriate circumstances, the fault of nonparties. The total fault is divided among all responsible parties and the decedent. Each defendant is generally responsible for the share of damages corresponding to that defendant’s own percentage of fault, rather than being jointly responsible for the entire amount.
Georgia enacted significant tort reform legislation in 2025 through Senate Bill 68, which adjusted several aspects of how fault and damages are handled. Among other changes, the legislation addressed the apportionment of fault in negligent security cases and the admissibility of seatbelt nonuse as evidence relevant to negligence, comparative negligence, causation, and apportionment. These changes affect how the conduct of a decedent or other parties may be presented and weighed, and they apply on timelines set out in the legislation.
Who Carries the Burden
The comparative negligence of a decedent is generally treated as a matter for the defense to raise and support. A defendant who contends that the person who died was at fault must put forward evidence supporting that contention, and the fact finder, usually a jury, then decides the percentages. The plaintiff side is entitled to contest that evidence and to argue for a smaller percentage or none at all.
Summary
A defendant in a Georgia wrongful death case can raise the conduct of the decedent as a defense, but Georgia does not apply the strict contributory negligence rule that would bar any recovery for any fault. Under the modified comparative negligence system in O.C.G.A. section 51-12-33, a recovery is reduced by the decedent’s percentage of fault and is barred only if the decedent is found to be 50 percent or more responsible. Fault may also be apportioned among multiple parties, and recent tort reform legislation has refined how some of these issues are handled.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
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