Arlo Law Office LLC

Call Arlo: 312-313-0035

Arlo Law Office LLC


Work with a trusted lawyer who knows the facts, knows the law, and knows how to persuade judges and juries.

Understanding Wrongful Death Claims

by | Oct 29, 2020 | Firm News

Under the Illinois Wrongful Death Act, 740 ILCS 180/0.01 (the “Act”), a decedent’s spouse or next of kin may bring a cause of action against a defendant that wrongfully or negligently caused the decedent’s death. The purpose of the Act is to compensate the decedent’s surviving spouse and next of kin for pecuniary losses sustained due to the decedent’s death, such as funeral expenses and loss of services and society.  Estate of Powell v. John C. Wunsch, P.C., 2013 IL App (1st) 121854.  The Act is intended to provide the surviving spouse and next of kin with the benefits that they would have received from the continued life of the decedent.  In re Estate of Finley, 151 Ill. 2d 95 (1992).  

Generally, a wrongful death claim must be brought within two years of the date of the decedent’s death.  740 ILCS 180/2.

1.          Elements of a Wrongful Death Action

To successfully bring a wrongful death action, the plaintiff must prove three elements: (1) the death of a person, (2) a wrongful act, neglect, or default on the part of the defendant, and (3) that the death was caused by the wrongful act, neglect, or default.  

With respect to the first element, a death, the state of gestation or development of a human being at death will not bar a wrongful death action.  740 ILCS 180/2.2.  This means that the parents of a viable stillborn fetus may bring a cause of action against a doctor or hospital that negligently causes the fetus’ death.  Seef v. Sutkus, 145 Ill. 2d 336 (1991).  

With respect to the second element, many different types of conduct can serve as the basis for a wrongful death suit, such as negligent driving (Williams v. Manchester, 228 Ill. 2d 404 (2008)), the negligent entrustment of a vehicle (West v. Granny’s Rocker Niteclub, Inc., 268 Ill. App. 3d 207 (5th Dist. 1994)), civil conspiracy (Adcock v. Brakegate, Ltd., 164 Ill. 2d 54 (1994)), willful and wanton conduct by a police officer such as fatally shooting a suspect during an arrest (Medina v. City of Chicago, 238 Ill. App. 3d 385 (1st Dist. 1992)), or a doctor’s breach of contact resulting in a patient’s death (Zostautas v. St. Anthony De Padua Hospital, 23 Ill. 2d 326 (1961)).

Finally, with respect to causation, the defendant’s wrongful act, neglect, or default must be both the cause in fact and proximate cause of the decedent’s death.  Turcios v. DeBruler Co.2015 IL 117962.  When evaluating cause in fact, courts will consider whether, but for the defendant’s conduct, the decedent’s death would have occurred.  Courts may also consider whether the defendant’s conduct was a “substantial factor” in bringing about the decedent’s death.  With respect to proximate cause, courts will consider whether the decedent’s death was the type of result that a reasonable person would see as a likely result of his or her conduct.

2.        Proper Parties

A wrongful death action must be brought by the decedent’s personal representative (an executor or administrator of the decedent’s estate).  If the decedent died with a will, an executor will be named and that executor will have the power to bring suit.  If the decedent died without a will, then an administrator of the decedent’s estate must be named to serve as the plaintiff.  An administrator may be any person who has attained 18 years of age, is a resident of the United States, is not of unsound mind, has not been adjudged to be a person with a disability, and has not been convicted of a felony.  755 ILCS 5/9-1.

The personal representative has the sole right to control the litigation, and is a fiduciary to the other beneficiaries under the Act.  Rodgers v. Consolidated R.R., 136 Ill. App. 3d 191 (4th Dist. 1985). 

A proper defendant is any person or company that wrongfully caused the decedent’s death.

3.       Damages

The Act provides that a decedent’s spouse and next of kin are entitled to just compensation for the pecuniary injuries resulting from the death of a decedent, including damages for grief, sorrow, and mental suffering.  740 ILCS 180/2.  Under the Act, “pecuniary injuries” include items such as loss of society, consortium, instruction, training, advice, companionship, education, guidance, income, and support.

Recovery under the Act is for the exclusive benefit of the surviving spouse and next of kin.  Bender v. Eiring, 378 Ill. App. 3d 811 (1st Dist. 2008).  The term next of kin is defined as persons nearest in degree of blood relationships surviving the decedent.  In re Estate of Poole, 207 Ill. 2d 393 (2003).