A wrongful death claim against the State of Georgia is governed by a different set of rules than a claim against a private person or company. The reason is a legal doctrine called sovereign immunity, which historically barred lawsuits against the state. Georgia has passed a statute that waives that immunity in limited circumstances. This guide explains when and how a wrongful death claim against the State of Georgia is permitted.
Sovereign Immunity and Its Limited Waiver
Sovereign immunity is the principle that a government generally cannot be sued without its consent. In Georgia, sovereign immunity has constitutional status, and it can be waived only by an act of the General Assembly that specifically provides for the waiver and sets out its extent.
The General Assembly enacted the Georgia Tort Claims Act, found at O.C.G.A. Section 50-21-20 and the sections that follow. The Act became law in 1992. Under O.C.G.A. Section 50-21-23, the state waives its sovereign immunity for the torts of state officers and employees acting within the scope of their official duties, and the state may be liable for those torts in the same manner as a private party would be, but only subject to all of the exceptions and limitations the Act contains.
This means a wrongful death claim against the State of Georgia is possible, but only within the boundaries the Georgia Tort Claims Act draws. The Act is the exclusive route for tort claims against the state, and the limitations within it are strict.
The Ante Litem Notice Requirement
One of the most important features of the Georgia Tort Claims Act is the ante litem notice requirement. “Ante litem” means “before the lawsuit.” Under O.C.G.A. Section 50-21-26, before a tort action against the state may be filed, a written notice of claim must first be presented to the state.
The notice must be provided within twelve months of the date the loss was discovered or should have been discovered. For a wrongful death claim, the loss is the death, so the twelve-month period generally runs from the date of death.
The statute is specific about how the notice must be delivered. It must be given in writing and sent by certified mail or statutory overnight delivery, return receipt requested, or delivered personally, to the Risk Management Division of the Department of Administrative Services. A copy must also be delivered to the state government entity that is the subject of the claim.
The statute also specifies the content the notice must contain, including the name of the state entity whose conduct is at issue, the time and place of the event, the nature of the loss, the amount of loss claimed if it can be determined, and the acts or omissions that caused the loss. Georgia courts have treated the ante litem notice requirement as a strict, threshold condition. A failure to provide a timely and adequate notice can bar the claim entirely, regardless of the merits of the underlying case.
The Statute of Limitations Still Applies
The ante litem notice requirement is separate from the statute of limitations. A wrongful death claim is generally subject to a two-year statute of limitations measured from the date of death. A claim against the state must satisfy both the twelve-month ante litem notice deadline and the applicable limitations period. Presenting the ante litem notice does not by itself satisfy the requirement to file the lawsuit within the limitations period.
Exceptions That Preserve Immunity
Even where the procedural requirements are met, the Georgia Tort Claims Act lists categories of claims for which sovereign immunity is not waived. These exceptions are found in O.C.G.A. Section 50-21-24. Among other things, the state retains immunity for losses resulting from a state officer or employee exercising due care in carrying out a statute or regulation, even if the statute or regulation is later found invalid, and for losses resulting from the exercise or performance of, or the failure to exercise or perform, a discretionary function, which the Act defines in terms of policy judgment.
The Act contains a number of additional exceptions covering specified subject areas. Because these exceptions can determine whether a wrongful death claim against the state may proceed at all, the analysis of whether a particular claim falls within a retained immunity is significant and depends closely on the facts and on the nature of the state conduct involved.
Limits on the Amount of Recovery
The Georgia Tort Claims Act also caps the amount that may be recovered. Under O.C.G.A. Section 50-21-29, no person may recover more than one million dollars for a loss arising from a single occurrence, and the state’s aggregate liability for a single occurrence may not exceed three million dollars, regardless of the number of state entities or claimants involved. The statute further provides that the existence of these caps is not to be disclosed or suggested to the jury during a trial.
State Versus Local Government
The Georgia Tort Claims Act applies to the State of Georgia and its departments and agencies. Claims against local governments, such as cities and counties, are governed by different rules and different ante litem notice statutes, with their own deadlines and procedures. Whether a particular government defendant is the state or a local entity affects which set of rules applies. Because the identity and legal status of the government defendant controls the framework, that determination is an important part of any claim involving a government party.
Who May Bring the Claim
The Georgia Tort Claims Act governs the procedure and limitations for suing the state, but it does not change who holds a wrongful death claim. The wrongful death statutes, including O.C.G.A. Section 51-4-2 and O.C.G.A. Section 51-4-5, continue to determine which survivors or which estate representative may bring the claim. A wrongful death claim against the state combines those wrongful death rules with the procedural and substantive limits of the Tort Claims Act.
Conclusion
The State of Georgia can be sued for wrongful death, but only through the limited waiver of sovereign immunity provided by the Georgia Tort Claims Act, O.C.G.A. Section 50-21-20 and following. Such a claim requires a written ante litem notice presented within twelve months and delivered in the specific manner the statute prescribes, and the claim must also satisfy the applicable statute of limitations. The Act contains exceptions, including a discretionary function exception, that preserve immunity for certain claims, and it caps recovery at one million dollars per person and three million dollars per occurrence. Because these requirements are strict and the exceptions are fact-dependent, claims against the State of Georgia are subject to a more demanding legal framework than claims against private parties.
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.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.