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
Rick Grossman
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