There is no more heartbreaking or life-altering challenge we face in life than dealing with the loss of a loved one. It’s even more cruel and hard to bear if the loss was the result of the actions, bad decisions, mistakes, or negligence of another party — a wrongful death. Wrongful death is a legal term that refers to a death caused by the fault of another party. And, though they can no longer act on their own behalf to see justice done, Illinois has laws that allow a victim’s family or estate to recover compensation for damages when a wrongful death occurs. Obviously, no amount of financial compensation can bring a loved one back, but fairness requires that survivors be provided for and compensated for their losses and the impact (economic and otherwise) on their lives. And, by holding the responsible party accountable, you may also help to ensure that the same fate doesn’t befall any other family in similar circumstances in the future. Wrongful death law is complicated and there are many issues to consider that differ with each case. To ensure a fair and just outcome, you’ll need a caring and knowledgeable Decatur wrongful death lawyer to support your family through this tragedy and help your family recover financially from your devastating loss. Call today and schedule your consultation with an experienced injury lawyer in Decatur.
Facts About Illinois Wrongful Death Law
Illinois law provides two approaches for survivors to recover compensation for damages caused by a wrongful death. These approaches are governed by two different statutes:
The Illinois Wrongful Death Act
The Illinois Wrongful Death Act (740 ILCS 180) allows a deceased person’s surviving family members to recover compensation for their own losses stemming from the death and its impact on them. The surviving family members generally means a spouse, children, or, in some cases, parents. In a wrongful death claim, the action is taken on behalf of the surviving family directly, so any recovered damages go to the next of kin and not to the deceased person’s estate. This shields the recovery from claims by creditors.
The Illinois Survival Act
The Illinois Survival Act (755 ILCS 5/27-6) provides for recovery of damages by an estate and makes the right of recovery for damages by the estate similar to the rights that the injured party would have had to pursue damages if they had not died. It allows the estate to make a survival action that permits recovery by the estate for medical expenses, funeral expenses, and lost earnings between the moment of injury and the moment of death. It even allows for recovery for any conscious pain and suffering endured before death occurred. Any recovered damages from a survival action go to the estate and are distributed according to the will under the direction of the probate court. Therefore, they may be subject to creditors of the deceased.
So, Illinois law provides for two separate kinds of claims for wrongful death. Every case will be different and the circumstances of the particular case will determine if one or both approaches are best. The two types of claims may be pursued at the same time if that appears to be the best approach. Obviously, you’ll need an experienced and knowledgeable attorney to explain your options and make sure you get all the compensation the law permits.
Elements of a Successful Wrongful Death Claim
To make a successful wrongful death claim in Illinois, you’ll have to show:
- Duty — the responsible party, whether an individual, a company, or other entity, had a duty to behave safely and avoid harm
- Breach — the party failed to meet this legal obligation and acted negligently, thereby breaching their duty
- Causation — the entity’s negligent actions caused the injury that was responsible for the victim’ s death
- Damages — in a wrongful death claim, it must be proven that the survivors suffered losses such as lost income or benefits, loss of companionship, grief and sorrow, etc. as a result of the family members death; in a survival action, it must be proven that the victim incurred some type of damages, such as lost wages, medical expenses, pain and suffering, etc. between the time of injury and the time of death.
Of course, it’s best to immediately consult a knowledgeable Illinois wrongful death lawyer so that your case is properly evaluated, that all of the responsible parties are identified, and that all of the evidence required to support a successful claim is obtained.
Examples Of Types of Wrongful Death Cases
A grieving family might require the help of an experienced wrongful death attorney for any of a wide variety of kinds of cases:
- Motor vehicle accidents, including:
- Medical malpractice incidents, including:
- surgical errors
- emergency room mistakes
- delayed or missed diagnosis
- medication mistakes
- errors leading to birth injury
- Dog bites or other animal attacks
- Injuries on someone’s unsafe property (premises liability)
- Construction site accidents
- Work related accidents (workers compensation)
- Nursing home wrongful death cases, caused by:
- Toxic exposures, such as:
- asbestos exposure
- herbicide or weed killer exposures
- other toxic chemicals released into the environment or workplace
- Defective products, such as defective air bags, car seats, medical devices, etc.
You should be sure that the wrongful death lawyer you choose has a wide experience with personal injury cases of all kinds.
Wrongful Death Claim FAQs
Who can file a wrongful death claim in Illinois?
A claim must be made by a person who has standing to pursue the case in Illinois. Only the personal representative of the deceased can file a wrongful death claim in this state. A personal estate plan or will usually names this individual (sometimes called an executor). However, if there is no document naming a representative, or the deceased did not have a will, a person can petition a court to appoint one. This representative can be the spouse of the deceased, an adult child of the deceased, or the parent of a deceased minor. As noted above, a survival claim can be made by the personal representative of the estate on behalf of the estate, but a claim under the Wrongful Death Act is brought for the exclusive benefit of the surviving spouse and “next of kin”. Under Illinois law, next of kin includes blood relatives in existence at the time of the victim’s death that would take property under the statutes if the victim had died without a will. In the absence of children or a spouse, other relatives such as parents or siblings of the deceased may qualify. But, the claim itself is made in the name of the personal representative, rather than of the family members.
Obviously, a compassionate wrongful death lawyer is helpful for consulting with relevant family members and the executor of the estate to determine the best possible course of action in pursuing claims.
What kind of damages can be recovered?
The damages that can be recovered after the death of a loved one depends on whether the claim is made under the Illinois Wrongful Death Act or the Survival Act.
Damages under the Wrongful Death Act
Section 2 of the Wrongful Death Act provides that fair and just compensation may be obtained, for the exclusive benefit of the survivors, with reference to any monetary injuries they suffered resulting from the wrongful death, including damages for “grief, sorrow, and mental suffering“. These monetary damages might include:
- lost income — this includes the complete value of the deceased’s financial contribution to the family
- lost benefits such as health insurance, pensions, bonuses, etc.
- loss of companionship — this includes loss of guidance and protection to children, as well as lost spousal consortium
- loss of future inheritance
- loss of services that the deceased would have provided to their spouse and children, including education and instruction for the children
- either the estate or individual survivors may bring a separate claim to recover funeral expenses
- finally, if an act of negligence that led to death was especially egregious, abusive, flagrant, or intentional, a jury in Illinois may punish the responsible party by awarding punitive damages — but malign intent or willful negligence must be clearly established.
The amount of damages is based on evidence of what the deceased victim typically contributed in the past and likely would have contributed in the future. The amount also depends on the degree of a survivors’ dependency, so the survivors’ relationship to the victim plays an important role.
Damages under the Survival Act
In a Survival Claim, the estate may recover for any damages the victim suffered between the time of injury and time of death, including:
- medical expenses
- lost earnings
- conscious pain and suffering
- any funeral expenses the estate is responsible for paying
It’s clear that calculating the amount of damages suffered, and by whom, in a wrongful death claim can be quite complicated. The losses must be supported by objective evidence. Many variables must be considered. It may require the expertise of financial professionals and economists. Figuring out how each family member is appropriately compensated can become fraught with emotion. A caring and experienced wrongful death attorney can help you through this difficult situation.
Is there a time limit for making a wrongful death claim?
If you don’t make a claim within the time allowed by statute (a statute of limitations), you may be barred from ever recovering compensation. For wrongful death, the claim must be made within one year of the date of death or within the statute of limitations for the underlying type of case, “which ever date is the later”. Most of these cases are of the personal injury type, which must generally be filed within two years of the date of the incident. That means you typically have at least one year and as much as two years to make the claim. There are some exceptions:
- Survivors of a person who died as a consequence of medical malpractice have two years from the time they knew, or reasonably should have known, that a provider’ s actions caused the death; but, in any case they must still bring the action within four years of the death
- a child has until two years after reaching the age of 18 to make a claim
- when making a claim against a government agency, the statute of limitations is usually one year
If you believe you have a claim, it’s important to consult an attorney as soon as possible, in order to make sure that any legal deadlines are met. The best way to determine what limitations period applies to your case is to take advantage of a free consultation with an experienced attorney.
What if the deceased was partly responsible?
In Illinois, being partially responsible for events that led to death is called contributory negligence or comparative fault. Survival actions and wrongful death claims can still be brought if the deceased was partially at fault. However, the damages awarded may be reduced. For example, if your loved one was determined to be 1-49% at fault, then the damages are reduced by a percentage proportionate to their fault. However, if the deceased was more than 50% responsible, the case may be dismissed. Also, the fault of any survivors pursuing damages may also be taken into account. If a particular survivor was more than 50% at fault in causing the death, recovery may be barred. If less responsible, the survivor may recover damages that are reduced in proportion to their degree of fault.
What can a Central Illinois wrongful death lawyer do for you?
You’re already dealing with loss and grief from a tragic death. You want answers about why this tragedy happened, but you’d rather heal your family and grieve in peace rather than deal with paperwork and insurance companies. You want justice, but this area of the law is complicated and every case is different. Consulting with an attorney with the skill and resources to make sure justice is done is the best approach. My firm can:
- Investigate — obtain all the medical records and other necessary evidence, including, when necessary, consulting with experts, to determine who was at fault and should be held responsible.
- Determine all the possible responsible parties, making sure that none are overlooked
- Review all insurance coverage — most often recovery can be obtained from a company that has ensured the responsible party; we can review all possible policies that might be involved in your case, such as auto liability, underinsured or uninsured motorist coverage, homeowners insurance, professional malpractice policies, etc.
- Establish and properly value all of your damages and losses
- Negotiate on your behalf — in many cases we can pursue a settlement that provides just compensation to the survivors and the estate without going to court
- Make sure that all legal deadlines are met
- Litigate — file a lawsuit, in the event that a settlement can’t be reached; we’ll make sure that you have representation in court to get you the recovery you deserve.
How much will it cost to get representation by a legal professional?
You shouldn’t feel like you have to do this alone and cost should not stand in the way of your ability to get legal help. We usually represent clients in these cases on a contingency fee basis. That means that there are no charges to you upfront and we are only paid from the settlement if and when we successfully obtain a recovery for you.
Protect Your Legal Rights
Contact us today for a no-cost initial consultation, so we can inform you about all your options. The sooner you contact one of our Decatur workers’ compensation lawyer, the faster we can get to work for you and let you get back to putting your life back together and spending time with your family.