Wrongful death lawsuits are brought when a person dies due to the negligence or misconduct of another person and the decedent's surviving next-of-kin or dependents are entitled to damages as a result of this negligence. So in order to file a wrongful death action you must satisfy the following criteria:
- Death caused either completely or partially by the defendant;
- Defendant was negligent and liable for the death;
- Decedent left dependents, whether a spouse, children, beneficiaries, etc.; and
- The dependents suffered monetary damages as a result of the death.
Wrongful death can arise out of a variety of different circumstances, such as medical malpractice, automobile or airplane crashes, exposure to hazardous conditions at work and criminal behavior. If you feel that your loved one died due to the negligence or misconduct of another person you might have a wrongful death claim, no matter the situation. But the survivors entitled to recover are defined by Illinois’ Wrongful Death Statute. The damages allowed are for the loss to the next-of-kin of the decedent. That makes it different than a claim under a different Illinois statute known as the Survival Act, where the estate of the decedent, not the “next-of-kin” are the party or parties entitled to recover. The matter of heirship is determined in the probate court.
Illinois has enacted a Wrongful Death Act, 740 ILCS 180/ et seq. Of note is the fact that the Wrongful Death Act does not allow an award or verdict for punitive damages.
Illinois’ Pattern Jury Instructions set out instruction on wrongful death damagers as this:
Measure of Damages--Wrongful Death
If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the [lineal next of kin, e.g. parent] of the decedent for the pecuniary loss proved by the evidence to have resulted to the [lineal next of kin] from the death of the decedent.
“Pecuniary loss” may include loss of money, benefits, goods, services, and society. Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the [lineal next of kin] has sustained some substantial pecuniary loss by reason ofthe loss of the child's society. The weight to be given this presumption is for you to decide from the evidence in this case.
In determining pecuniary loss, you may consider what the evidence shows concerning the following:
[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily contributed in the past;]
[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have contributed in the future;]
[3. His/her age;]
[4. His/her sex;]
[5. His/her health;]
[6. His/her physical and mental characteristics;]
[7. His/her habits of (industry,) (sobriety,) (and) (thrift);]
[8. His/her occupational abilities;]
[9. The grief, sorrow, and mental suffering of [next of kin];]
[10. The relationship between [lineal next of kin] and the decedent.]
While the rules governing wrongful death litigation vary by state, in Illinois and Chicago, the Wrongful Death Statute sets out specific procedures for bringing such a wrongful death lawsuit. For example, oftentimes the decedent suffers pain and suffering before his or her death. In that case, Illinois law allows the decedent's family to bring a cause of action for both survivorship and for wrongful death. The survivorship part of the lawsuit is for conscious pain and suffering that the decedent experienced before death. Again, that aspect of a death case is different and governed by a different Illinois statute; the Illinois Survival Act; 755 ILCS 5/27-6.
A lawsuit for wrongful death belongs to the decedent's next-of-kin and is often brought by the personal representative or administrator of the decedent's estate. A wrongful death claim could be brought by the decedent's wife, husband, children and sometimes parents on behalf of the estate of the decedent. In one wrongful death case that Kreisman Law Offices handled to its completion, the entire family of four was killed in a head-on car crash. The closest survivors, next-of-kin of the family, were the parents of the wife and mother of the two small children who also perished in the crash. These were the grandparents of the children who acted as the personal representative for both the wrongful death statute claim and the survival action. The two claims are separated because of the distinguishing features of each. A survival act claim is for the conscious pain and suffering experience by the decedent before the death. The damages that may be recovered for that part of the case belongs to the estate of the decedent, not directly to the next-of-kin as would be case for the wrongful death of the person.
Because of the complicated nature of wrongful death cases, you need a lawyer with the necessary experience to obtain justice for you and your family. With more than 40 years of trial experience in wrongful death and medical malpractice, Kreisman Law Offices knows the law inside and out and will put their knowledge to use for you.
If your family has been impacted by wrongful death, Kreisman Law Offices is here to help. 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.