Whenever the death of a person is caused by the wrongful act or negligence of another, a claim may be brought to recover damages suffered as a result of the death. In addition to the wrongful death claim, a “survival action” may be brought to recover for damages suffered by the decedent before death such as pain and suffering. A wrongful death claim and survival claim are independent of one another. Both should be considered and evaluated by a Chicago attorney.
The Illinois Wrongful Death Act (740 ILCS 180/1) provides:
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured…
A wrongful death claim may arise in a variety of settings including motor vehicle accidents, medical malpractice or product liability.
Who may recover damages for the death of a loved one?
A wrongful death claim is brought in the name of the personal representative of the deceased person and is brought for the exclusive benefit of the surviving spouse (if the decedent was married) and next of kin of the deceased person.
“Next of kin” means persons nearest in degree of blood relationship surviving the decedent. A surviving spouse is a beneficiary under the Wrongful Death Act. If the decedent doesn’t leave a surviving spouse, the next of kin are the beneficiaries. The decedent’s children are next of kin and beneficiaries. If the decedent does not have children, the decedent’s parents, brothers, and sisters are beneficiaries under the Act. Whether a decedent left a surviving spouse, surviving children, or parents and siblings impacts the manner in which the claim proceeds. The nature of the relationship that the decedent enjoyed with his family is also critically important.
What rights does a spouse have under the Act?
The person must have been the decedent’s legal husband or wife at the time of death to recover under the Wrongful Death Act as a surviving spouse. Until a divorce decree becomes final, the spouse remains a spouse for purposes of the Act. If a couple was separated or otherwise had a troubled relationship, the compensatory value of the claim may be more limited than if the couple enjoyed a close relationship. The strength of the marital relationship impacts the compensatory value of the case.
Former spouses, fiancés, significant others that live together are not “spouses” within the meaning of the Wrongful Death Act. “Common law marriage” is not recognized in Illinois. Even if the “significant other” and decedent had been remarkably close that person does not have the right to recover damages under the Wrongful Death Act.
What are the rights of children if a parent dies?
The loss of a parent can be devastating for a child. Not only does the child lose the emotional support of the parent, but financial support may also be lost. A wrongful death claim may be brought on behalf of a child for the loss of his parent when the parent dies due to the wrongful act or negligence of another. Both minor children and adult children may receive compensation under the Wrongful Death Act for their pecuniary losses resulting from the death of their parents.
Adopted children and adoptive parents qualify as next of kin entitled to recovery under the Act. The Wrongful Death Act specifically provides that next of kin includes an adopting parent and an adopted child and they are treated the same as natural parent and natural child would be.
Whether the decedent has a spouse or children significantly impacts the manner in which any available proceeds are distributed. Neither parents nor siblings are considered “next of kin” entitled to recover under the Act when the decedent leaves surviving children. This can become especially complicated when multiple children are involved with different mothers or fathers. This is an issue a Chicago attorney must carefully consider when advising the next of kin regarding their rights in a Wrongful Death claim.
What are “pecuniary injuries”?
“Pecuniary injuries” refers to money, goods and services received by the next of kin from the decedent. If the next of kin includes surviving children, pecuniary injuries includes the instruction and moral training that the children would have received from the decedent. Pecuniary injuries also includes the loss of consortium by the surviving spouse, the loss of a minor child’s society by the parents, the loss of an unmarried adult child’s society by the parents, the loss of a parent’s society by an adult child and the proven loss of a sibling’s society.
When the decedent leaves a widow, widower or children, there is a presumption that they have suffered substantial pecuniary loss as a result of the death. This presumption applies even where the decedent was an adult and the next of kin are also adults. If the next of kin are more distant relatives such as siblings or parents, that same presumption of substantive pecuniary loss does not apply.
What does “loss of society” mean?
The term “loss of society” means the mutual benefits that each family member receives from the other’s continued existence including love, affection, care, attention, companionship, comfort, guidance, and protection. The “loss of society” is a significant aspect of the compensation available under the Act. The relationship the family members enjoyed together impacts the compensatory value of the claim. The details of the relationship can be established through family photos and testimony of family members and others regarding family activities, vacations, memories and experiences.
What if an unborn child dies as the result of negligence?
Illinois law permits recovery for the wrongful death of an unborn child if the fetus was viable at the time of the negligent act. The presumption that the parents suffered substantial loss extends to a stillborn child. Whether an unborn child is “viable” depends upon the testimony of a doctor. The fetus must be approximately five months gestational age, and usually later to be “viable”. The farther along in the pregnancy the more likely that the fetus would be considered “viable”. These are issues which must be addressed on a case by case basis.
Are punitive damages available in a wrongful death case?
Punitive damages may not be recovered in an action under the Wrongful Death Act.
If money is recovered how are the proceeds divided?
The Wrongful Death Act provides that the trial judge shall conduct a hearing to determine the degree of dependency of each beneficiary upon the decedent. The court will look at the nature and extent of the relationship in determining how the proceeds should be divided.
Hearings which address degree of dependency can be difficult. If the next of kin are adults and agree as to how the money should be distributed, there is often no need for a formal hearing. If some or all of the next of kin are minors, the court will be more involved in the distribution of the money.
If there is only a surviving spouse and no children, there is no need for a formal hearing. A dependency hearing is more likely to become contentious if the family has had trouble getting along in the past, or when some children are born to different mothers or have different fathers. The more complicated the family dynamic the more contentious this part of the case may be.
What about the pain and suffering of the decedent before death?
A representative of the decedent can maintain an action that had accrued during the deceased’s lifetime under the Illinois Survival Statute. The representative can make a claim for damages including lost wages, conscious pain and suffering and loss of normal life. The Survival Statute allows the recovery of damages for the pain and suffering experienced by the decedent from the time of the injury until the time of death even when the injury was the cause of death. For example, if the decedent was in a car accident and died two hours later, the conscious pain and suffering that the decedent experienced over that two-hour period is recoverable.
There must be evidence of conscious pain and suffering in order to recover this element of damage. It is not enough to demonstrate that the decedent suffered a severe injury before death. Instead, there must be evidence such as testimony of a medical care provider or other witness that the decedent was conscious and experienced pain. Even short periods of conscious pain and suffering can be a significant element of damage.
At Dwyer & McDevitt we have handled wrongful death cases involving auto accidents, medical malpractice and other causes of catastrophic injury and death. We have mediated and tried wrongful death cases in front of a jury successfully for our clients. If you need further information or would like to discuss the circumstances surrounding a loved one’s death, please contact Dwyer & McDevitt for a free consultation.