Wrongful Death - Rebuttable Presumption
Under previous common law, if a person was injured but died before there was a verdict returned and the plaintiff (the injured party) died from the injuries for which the lawsuit was brought, the case for personal injuries abated. Susemiehl v. Red River Lumber Co., 376 Ill. 138 (1941). Happily, Illinois law was changed by the Illinois Supreme Court case of Murphy v. Martin Oil Co., 56 Ill.2d 423 (1974). The Survival Statute now has given Illinois plaintiffs the same application in all cases that result in death even where the death resulted from a cause other than the initial wrongful act.
In addition, in Illinois, where a death results from a tortious injury, the Illinois Wrongful Death Act creates a cause of action in the name of the personal representative for the benefit of the widow and next-of-kin for their “pecuniary injuries.” 740 ILCS 180/1, 180/2.
Under the Wrongful Death Act, Illinois recognizes that the death of a loved one is a compensable injury. But another aspect of the Wrongful Death Act that is often overlooked and as was concisely outlined in a recent CBA Record article, January 2015, by attorney Michael P. Kogan entitled “Loss of Society in Death Cases”, it was explained very clearly that there remains in affect a rebuttable presumption of pecuniary loss in wrongful death cases.
Illinois’ Wrongful Death Act created a rebuttable presumption of a substantial pecuniary loss that applies when a decedent leaves a direct lineal heir or spouse. There is a whole line of cases that make abundantly clear that the presumption works for spouses, parents of minor children, parents of adult children, and children for the loss of society of their parent.
The Illinois jury instructions on wrongful death, beginning with Illinois Pattern Jury Instruction (IPI) 31.01 set forth definitions and allows for the recovery of damages for grief, sorrow and mental suffering of the next-of-kin and applies for cause of action that accrued on or after its effective date of May 31, 2007, which is the 2007 Amendment to the Wrongful Death Act, 740 ILCS 180/2.
In 1984, the Illinois Supreme Court abolished the former presumption of loss of earnings for a child’s death but instead created a presumption of loss of the minor’s child society on the death of a child to his/her next of kin.
On the subject of the rebuttable presumption of pecuniary loss, IPI 31.04 sets out that, “Where a decedent leaves [lineal next-of-kin], the law recognizes a presumption that the [lineal next-of-kin] have sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for you to decide from the evidence of the case.
In determining pecuniary loss, you may consider what the evidence shows concerning the following:” …
Listed in that jury instruction are twelve different items ranging from simply money, goods, services to future benefits with an eye to the age, education, sex, health, personal habits, occupational abilities and the relationship between the lineal next-of-kin and the decedent. Also, the marital relationship that existed between the decedent and a surviving widow or widower.
The law in Illinois is that in a wrongful death case, there is a rebuttable presumption of pecuniary loss. But the law does not guide the parties as to what the high and the low of these presumed pecuniary losses might be. The value is left open for juries to determine. That task may in too many cases be onerous depending on the facts.
As a matter of fact, there are cases where even though the presumption of pecuniary losses present for the next-of-kin to the decedent, the jury decided that there was no such assignable loss. In a case where the jury found there was no pecuniary loss even though there was evidence by testimony of family members that the decedent had a close relationship with two adult daughters, a close relationship with grandchildren and a husband and where the defendants provided no independent evidence that the relationship with these members of the next-of-kin were otherwise, the verdict was upheld on appeal.
The court held in Passow v. Glaser, No. 2-09-1178, 2011 WL 10101872 (March 11, 2011), that the jury’s award of no damages for loss of society was not against the manifest weight of the evidence. That appellate court held that it was up to the jury to assess the pecuniary damages with or without the presumption that in the jury’s minds the evidence of a close relationship(s) was insufficient. The court said it was up to the jury to assess the credibility of witnesses which could only have been the determining factor in that case.
Naturally, there are cases that go the other way where there is evidence of a lack of contact with family by next-of-kin to the decedent, but yet the jury finds that the plaintiff has made the case for loss of society and the jury enters a verdict for compensatory or pecuniary damages.
Rebuttable presumptions by law are just that, meaning they are subject to rebuttal. In wrongful death cases, the rebuttable presumption of a pecuniary loss to the next-of-kin can be rebutted by evidence of estrangement by a spouse, children, grandchildren, parents and other next-of-kin. In one case, Watson v. South Shore Nursing & Rehabilitation Center, 2012 IL App (1st) LEXIS 103730, 965 N.E.2d 1200, the Illinois Appellate Court held that where the jury entered a verdict of zero damages for loss of society, the verdict there was against the manifest weight of the evidence. In that case, the decedent’s daughters and even employees of the nursing home testified about the close relationship that the next-of-kin had with the decedent. In spite of all that evidence and no evidence to rebut that evidence, the jury entered zero damages. That verdict was overturned by the appellate court in relying on another case People ex rel. Brown v. Baker, where the court held that if “the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, not inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.”
In yet another case that went the way that the Passow case went, Smith v. Mercy Hosp & Medical Center, the appeals panel stated that the right to weigh the presumption is the right to give it no weight at all. What the author of the CBA Record article, Mr. Kogan remarked is that in some cases, the strategy may be that plaintiffs may choose not to testify about their right of society at all as the jury may give that testimony no weight or just disbelieve that the next-of-kin is truly that close to the decedent. In that case, where a jury disbelieves the testimony, the plaintiff’s claim for pecuniary loss for loss of society would be defeated.
In any event, in a wrongful death action brought in Illinois, plaintiffs are encouraged to provide the jury with as much credible testimony that would serve as proof of loss of society. Independent witnesses of the close relationship(s) of the decedent with next-of-kin would be valuable. In the Passow case, there was no evidence of corroborating testimony about the relationship with the decedent by the next of kin. In another case, a family pastor testified to the relationship the decedent had with as many as 14 family members all of whom were awarded pecuniary damages in a wrongful death action. Eaglin v. Cook County Hospital, 227 Ill.App.3d 724 (1st Dist 1992).
In one of Kreisman Law Office’s wrongful death cases, the estranged wife of the decedent, who was a party plaintiff originally for loss of consortium, was dismissed from the case prior to the beginning of the trial because of what we believe would have been negative evidence that would have impacted the decedent’s relationship with the children, which was a warm and close relationship. Without the wife involved in giving testimony that may have been damaging, the jury was impressed by the independent testimony that the decedent was close with his two minor children and kept up a close relationship with them even though he was not particularly close with his then estranged spouse.
In summary, the rebuttable presumption of pecuniary loss that is granted to the direct lineal heirs, spouse and next-of-kin of the decedent is a distinct advantage. The plaintiffs must be cognizant of the jury’s wide range of discretion in awarding damages to the next of kin in wrongful death cases as the courts and legislature have not defined the limits of the value of pecuniary loss, leaving that aspect for juries to decide.
If you or a loved one has been wrongfully killed in an accident or in a medical or hospital setting, contact the experienced lawyers at Chicago’s Kreisman Law Offices.
Robert Kreisman of Kreisman Law Offices has been handling Chicago and Illinois wrongful death cases for more than 40 years. Kreisman Law Offices has prevailed in trials and settlements in Chicago, Illinois and surrounding communities and has successfully resolved cases for those injured or who have died for these many years.
With our years of experience in trying and settling wrongful death cases, Kreisman Law Offices provides the best possible services to our clients and have achieved unsurpassed results. Our service is unmatched. Please call us 24 hours a day at 312.346.0045 or toll free 800.583.8002 for a free and immediate consultation, or complete a contact form online.