In Georgia, a survival action and a wrongful death claim are two separate claims that often arise from the same fatal incident, and they are governed by different starting points for their filing deadlines. A common point of confusion is whether the deadline for a survival action runs from the date the person was injured or from the date the person died. Under Georgia law, the survival action generally carries forward the deadline that already applied to the decedent’s own personal injury claim, which means it ordinarily runs from the date of the injury rather than the date of death.
What a Survival Action Is
A survival action is based on O.C.G.A. section 9-2-41, which provides that a tort cause of action does not abate, or end, when the injured person dies. Instead, the claim survives and passes to the decedent’s personal representative, meaning the executor or administrator of the estate. The survival action allows the estate to pursue the claim the decedent personally held, including damages for the decedent’s losses before death, such as conscious pain and suffering, medical expenses incurred before death, and funeral expenses.
The essential idea is that the survival action is the decedent’s own claim continuing after death. It is not a new claim created by the death. Because it is a continuation of the decedent’s claim, the deadline that governed the decedent’s claim during life continues to govern the survival action.
The Two-Year Personal Injury Deadline
The deadline that applied to the decedent’s personal injury claim comes from O.C.G.A. section 9-3-33, which sets a two-year limitation period for actions for injuries to the person. For a personal injury claim, that two-year period generally begins to run on the date the injury occurs.
Because a survival action carries forward the decedent’s personal injury claim, it ordinarily carries forward this same two-year period measured from the date of injury. If a person is injured on a particular date and later dies from those injuries, the survival action time period generally began running on the date of the injury, not on the later date of death. The time that passed between the injury and the death is part of the two-year period, not a fresh start.
The Contrast With the Wrongful Death Claim
The wrongful death claim is governed differently, and the contrast explains much of the confusion. A wrongful death claim under O.C.G.A. Title 51, Chapter 4, is a separate claim that belongs to certain surviving family members and seeks the full value of the life of the decedent. The wrongful death claim does not exist until the death occurs, because the death is what gives rise to it. For that reason, the two-year period for a wrongful death claim generally runs from the date of death.
So in a single case where a person is injured on one date and dies from those injuries on a later date, two different claims can have two different starting points. The survival action, which is the decedent’s continued claim, generally runs from the date of injury. The wrongful death claim, which arises only upon the death, generally runs from the date of death.
When Injury and Death Occur on the Same Day
When death occurs at the time of the injury, the distinction collapses for practical purposes, because the date of injury and the date of death are the same. The difference becomes meaningful only when there is an interval between the injury and the death. In those cases, the survival action deadline can expire before the wrongful death deadline, because the survival action clock started earlier.
Tolling and Other Factors That Can Affect the Timing
Georgia law recognizes circumstances that can pause, or toll, a limitation period. One that frequently arises in the context of an estate involves the time before an estate has a representative. Georgia law allows for a period after a death during which the appointment of an estate representative has not yet occurred, and this can affect the running of time on claims that belong to the estate. Georgia courts have addressed how this tolling concept applies to estate claims, and the rules in this area are detailed and fact-dependent.
Other circumstances can also affect limitation periods, such as legal incapacity, the involvement of a minor, fraud that conceals a cause of action, or claims against governmental entities that carry their own notice requirements and shorter deadlines. Different rules can apply depending on the type of defendant and the type of claim. Because of these variables, the precise deadline in any particular situation depends on the specific facts.
Why the Distinction Matters
The reason the distinction between date of injury and date of death matters is that the two claims, although they often travel together, are not on the same schedule. The survival action follows the decedent’s personal injury claim and its date-of-injury starting point. The wrongful death claim follows its own date-of-death starting point. Treating the two as if they shared a single deadline can lead to a misunderstanding of when each claim must be filed.
Summary
In Georgia, the survival action under O.C.G.A. section 9-2-41 is a continuation of the decedent’s own personal injury claim, and it generally carries forward the two-year limitation period of O.C.G.A. section 9-3-33 measured from the date of injury. The wrongful death claim is a separate claim that arises upon death and generally runs from the date of death. When there is a gap between the injury and the death, the two claims can have different deadlines. Tolling rules, the status of the estate, the type of defendant, and other facts can change the analysis, so the actual deadline in a given situation depends on the specific circumstances.
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.