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Arlo Law Office LLC


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Has Your Loved One Died Because Of Someone Else’s Negligence?

No one should have to lose a family member as a result of another person’s negligence.

The Illinois Wrongful Death Act provides the family members of a wrongfully killed individual the right to sue and recover damages from the party or parties that caused the death. The purpose of damages is to aid the decedent’s family by providing compensation for things like loss of services and society, mental suffering, and funeral expenses.

If you have lost a loved one in an accident, you and your family are entitled to full and fair compensation for your loss. When you work with experienced personal injury lawyer Arlo Walsman, you can rely on his experience and zeal to get you the justice you deserve. Call Arlo at 312-313-0035 or send him an email to schedule your free case evaluation.

Survival Claims

The Illinois Survival Statute provides that actions to recover damages for an injury to the person survive the person’s death. This means that the decedent’s representative can bring a claim on behalf of the decedent after his death. Common claims that are brought are: (1) negligence claims (for example, if the decedent was killed in a car accident as a result of another driver’s negligence, or as the result of a doctor’s medical malpractice); (2) claims for abuse or neglect in a nursing home, and (3) civil rights and police misconduct claims. However, some causes of action do not survive a decedent’ death, such as intentional infliction of emotional distress, false imprisonment, and invasion of privacy.

A. Damages in Survival Claims

In Illinois, the representative of the decedent’s estate is entitled to a money damage award that will fairly compensate the estate for injuries that the decedent suffered from the time of the defendant’s wrongful conduct until the decedent’s death. When considering the appropriate amount of damages, it is important to consider the nature, extent, and duration of the decedent’s injuries.

Common elements of damages that are recoverable are medical expenses, pain and suffering, emotional distress, and loss of normal life. For a plaintiff to recover for pain and suffering, a plaintiff must prove that the decedent actually and consciously endured pain and suffering before his death, and this element of damages will not be available when the death is instantaneous or if the decedent is rendered immediately unconscious. Punitive damages are also available in limited circumstances when strong equitable considerations support such an award. For example, if a decedent was killed by a drunk driver, then the plaintiff may recover punitive damages.

Any damages recovered become an asset of the decedent’s estate. In Cook County, damages in a survival claim must be distributed by the probate court. If the decedent had a will, then the funds will be distributed according to the will’s terms. If there was no will, then the funds will be distributed according to the Illinois rules of descent and distribution in the Illinois Probate Act. If the decedent had a surviving spouse and children, then the spouse gets half of the award, and the remaining award is split evenly among the children. If there is no surviving spouse but surviving children, then the children will split the damages equally.

B. Proper Plaintiff

A survival claim must be brought by the representative of the decedent’s estate. If the decedent had a will naming an executor, then the executor can petition the probate court for letters testamentary, which grant the executor the power to sue. If there is no will, an adult child of the decedent can petition the court to be named the representative. If the representative seeks to file a wrongful death claim and a survival claim, then the representative must petition the probate court to be named the representative. However, if there is no wrongful death claim because the decedent’s death was unrelated to the survival claim, then the representative does not need to go to probate court and can have a law division judge formally appoint the representative to bring suit.

C. Statute of Limitations for Survival Actions

Pursuant to the Illinois Code of Civil Procedure, a survival claim arising out of personal injuries to the decedent typically must be brought before within two years of the underlying wrongful conduct that caused the death, or within one year after the decedent’s death, whichever date is later.

Wrongful Death Claims

A. 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. 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.

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, the negligent entrustment of a vehicle, civil conspiracy, willful and wanton conduct by a police officer such as fatally shooting a suspect during an arrest, or a doctor’s breach of contact resulting in a patient’s death.

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. 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.

B. Damages in Wrongful Death Claims

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. Under the Act, “pecuniary injuries” include items such as loss of society, consortium, instruction, training, advice, companionship, education, guidance, income, and support. 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.

Recovery under the Act is for the exclusive benefit of the surviving spouse and next of kin. The term next of kin is defined as persons nearest in degree of blood relationships surviving the decedent.

C. Proper Plaintiff

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.

The personal representative has the sole right to control the litigation and is a fiduciary to the other beneficiaries under the Act. A proper defendant is any person or company that wrongfully caused the decedent’s death.

D. Statute of Limitations

Generally, a wrongful death claim must be brought within two years of the decedent’s death. However, an action may be brought within five years after the date of death if the death was the result of a violent intentional act.