The Plain Truth About the Practice of Personal Injury Law

Monday, May 28, 2012

What is an Illinois Wrongful Death Action?

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A “wrongful death” lawsuit that arises from the death of an individual that was caused most often by the negligence of another. Under the old common law there was no cause of action for death so goes the expression: “That if you run someone over with your car and they are still moving back up and run over them again.”
Under Illinois Statutory law (created by the legislature), a wrongful death lawsuit is different from other types of personal injury claims because the actual victim (the "decedent") does not bring the lawsuit, rather it is the limited stated family members or the decedent's probate estate. Recovery of compensation may be had by those blood family member that have lost economic support and/or consortium due to the death of the victim. The recoverable damages do not include those that are personal to the decedent, including pain and suffering, mental distress, or any other form of compensatory damages unique to him or her.
To file a wrongful death suit in Illinois, you must show that:
  • The death of a person was proximately caused by a wrongful act, neglect or other fault
  • If the individual had not died they would have been entitled to file an action to recover damages for their injuries.
  • Loss of support and/or consortium has resulted from the decedent’s death.
The proceeds of the wrongful death action must go to the surviving spouse or next of kin. If no surviving spouse or next of kin exists, then siblings may stand to recover.  A non related person cannot share in the proceeds even though the decedent may have been voluntarily supporting them. A personal representative is a person appointed by the state of Illinois to represent the beneficiaries. Siblings and cousins of the decedent do not have the right to bring the lawsuit unless they have been named a personal representative of the decedent or if no other persons survive the decedent.  When a jury awards damages it does so in a gross sum without identifying those persons that shall share in the same. The court then conducts a hearing without a jury to determine how the monies shall be divided.
Wrongful death proceeds do not pass pursuant the law of a will or “intestate succession”. A duly executed will has absolutely no effect upon the distribution. The trial court handles the entire process from beginning to end. In another article I will discuss a second type of lawsuit referred to as a “Survival Action” which comes into play when the decedent does not die immediately from the negligent act but languishes in pain for a period of time before he or she expires.
In a follow up article I will explain what is commonly referred to as a “survival action”.

Rick Grossman

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