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Who Can File a Wrongful Death Lawsuit?

Published on Jan 16, 2024 at 8:49 pm in Wrongful Death.

Who Can File a Wrongful Death Lawsuit?

State laws dictate who has the right to file a lawsuit after a wrongful death caused by negligence. Below, we will examine the Illinois statutes that answer the question: Who can file a wrongful death lawsuit?

An attorney from Krzak Rundio Gorman, Injury Attorneys LLC is available to answer any questions you have regarding the filing of a wrongful death lawsuit in Illinois. If you lost a close family member in an accident caused by the negligent conduct of another, please contact our office to schedule a consultation with a member of our legal team.

Who Can File a Wrongful Death Lawsuit in Illinois?

Illinois laws governing civil legal actions involving a fatality specify who can file a wrongful death lawsuit in our state. According to the Illinois Wrongful Death Act, a personal representative of the deceased individual can take legal action against the person or party responsible for the wrongful death.

Any amount of compensation recovered through this legal action will benefit the surviving spouse and next of kin of the decedent (deceased individual). “Next of kin” is usually limited to close family members such as the spouse and children of a deceased person and if there are no such next of kin, then potentially, parents, and siblings, including adopted children and adoptive parents. It is important to speak to a lawyer to determine who the appropriate next of kin are and who the appropriate individual is to file and proceed with the wrongful death action.

If the parties cannot agree (with court approval), then the court will decide what percentage of the compensation amount should be awarded to each family member. This decision will be based primarily on each family member’s financial dependency on the decedent prior to their death.

In the event there is no surviving spouse or next of kin entitled to recovery, damages recovered in the wrongful death lawsuit filed by the personal representative can go to one or more other parties, depending on the circumstances of the case. These other parties may be:

  • The person(s) who furnished hospital services for the decedent’s last injury or illness (cannot exceed $450)
  • The person(s) who furnished medical or surgical services associated with the decedent’s last illness or injury (cannot exceed $450)
  • The personal representative who handled the legal matters (cannot exceed $900 plus a reasonable attorney’s fee)

What Compensation Is Available in a Wrongful Death Lawsuit?

Illinois state law grants surviving spouses and next of kin the right to recover both economic and noneconomic damages through a wrongful death lawsuit. Economic damages compensate the surviving family for tangible financial losses, while noneconomic damages address the emotional injuries such as the loss of the love, consortium associated with the sudden and preventable loss of a loved one.

Economic and noneconomic damages are categorized as “compensatory” damages because they compensate for the family’s losses. They are referred to as pecuniary damages in the Illinois Pattern Jury Instructions This may include:

  • Funeral costs
  • Burial or cremation fees
  • Expenses for memorial and end-of-life services
  • Medical bills incurred through the decedent’s final injury or illness
  • Lost past and future wages
  • What money, benefits, goods and services the decedent was likely to have contributed
  • Grief, sorrow, and mental suffering
  • Loss of consortium
  • Loss of love
  • Loss of guidance, instruction, moral training and superintendence of education
  • Loss of companionship

A separate type of damages is punitive damages. These are awarded by a court as a punishment, with the intent to stop similar future behaviors. Punitive damages may only be applied in addition to compensatory damages, never on their own. Effective August 11, 2023, Illinois Amended its Wrongful Death Act to permit punitive damages in actions for wrongful death. Before this, Illinois was in the minority of states that did not permit the estate of an injured party to recover punitive damages in wrongful death cases. The new statute carved out certain exceptions – ie.) punitive damages will still not be available in medical or legal malpractice actions or in cases against state or local governmental entities and employees of such entities acting in their official capacities.

In order to pursue such a claim, the Plaintiff must still follow the Illinois Code of Civil procedure and file a motion no later than 30 days after the close of discovery, demonstrating to the court that the plaintiff has a “reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.”

Illinois statutes place strict guidelines on the conditions under which punitive damages may be awarded. In any wrongful death lawsuit, it must be shown by “clear and convincing evidence” that the at-fault party’s actions were:

  • Done with evil motive, or
  • Done with reckless and outrageous indifference to a highly unreasonable risk of harm, and
  • Done with a conscious indifference to the rights and safety of others.

Punitive damages are exceptionally uncommon in personal injury cases. There are, however, situations in which punitive or “exemplary,” damages may be appropriate in a wrongful death case. Bring any questions you have about punitive damages to your case evaluation with a wrongful death attorney.

What Is Considered a Wrongful Death in Illinois?

Wrongful death is a legal term with a very specific definition under Illinois law. Just because a person loses their life in a sudden, tragic, or unexpected manner does not mean it is a wrongful death. A fatality must meet the legal criteria for a wrongful death before a personal representative can file a wrongful death lawsuit on behalf of the deceased’s spouse or next of kin.

In Illinois, a wrongful death is one that results from a wrongful act, neglect, or default committed by a person, company, or other entity. If the decedent had survived the negligence that caused their death, they would have had legal standing to file a personal injury lawsuit to recover damages. Since they did not survive, a personal representative can assume their place in taking legal action against the at-fault party.

What Types of Accidents Can Result in a Wrongful Death?

The law does not place limits on the types of accidents that can be considered to have caused a wrongful death. Any act of carelessness or recklessness may result in the wrongful loss of another person’s life.

At Krzak Rundio Gorman, Injury Attorneys LLC, we handle preventable fatalities involving:

  • Car accidents
  • Bus accidents
  • Train accidents
  • Rideshare accidents
  • Commercial truck accidents
  • Motorcycle accidents
  • Electric scooter accidents
  • Bicycle-struck-by-vehicle accidents
  • Aviation and airplane/ aircraft crashes
  • Boating accidents
  • Medical malpractice
  • Workplace asbestos exposure

Krzak Rundio Gorman, Injury Attorneys Advocates for Families of Victims

Losing a loved one to an act of negligence is one of the most difficult situations a person can face. At Krzak Rundio Gorman, Injury Attorneys, we have the utmost respect for every family who makes the brave decision to hold an at-fault party accountable for actions that caused a preventable tragedy.

Our law firm exists to help clients through the most difficult times of their lives. We never take this responsibility lightly. If you choose our law office to represent you in filing a wrongful death lawsuit, we will employ the full extent of our legal knowledge, skill, experience, and confidence to see that you are awarded justice. We stand on the side of the victims and their families, not the wrongdoers and their insurance companies eager to evade liability for negligence.

To learn more about who can file a wrongful death lawsuit and what conditions must be met under Illinois law, schedule a case evaluation at our Chicago law firm. We begin with a free consultation to determine your legal options and give you the chance to decide if we are the right fit for your case. A meeting with an attorney does not place you under any obligation to partner with our law office.

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