When a loved one is injured by the wrongful act of another, you probably already know that he or she can seek compensation for the personal injury from the person who committed the wrong. You might not know that, depending on your relationship to the injured person, you, too, might be entitled to compensation. That’s because personal injury law in Illinois seeks to compensate for more than just physical injuries, but mental and emotional ones, too.
That goal extends beyond mere injuries, however. If a close family member—like a husband or wife, parent, child, or sibling—is killed because of someone else’s negligence, malpractice or other wrongful conduct, the law provides an avenue for you and other surviving family members to seek justice. That avenue is known as a wrongful death action, and this post provides a basic overview of what you need to know about it.
What Happened in Ochoa v. Menard?
In Illinois, wrongful death claims are governed by the Illinois Wrongful Death Act (IWDA). The elements of a wrongful death claim—what the plaintiff has to prove—are similar to what a plaintiff in a negligence lawsuit must prove. Specifically, to prevail in a wrongful death action, the plaintiff must prove that:
- The defendant owed a duty to the person who died;
- The defendant breached that duty;
- The defendant’s breach proximately caused the person’s death; and
- Recoverable damages resulted.
Who Can File a Wrongful Death in Illinois?
The IWDA says that every wrongful death action “shall be brought by and in the names of the personal representatives” of the person who died. A personal representative is the person appointed to administer the estate of a deceased individual. Often, this is a family member, but not always.
However, just because the personal representative files the suit doesn’t mean he or she is the only one who can recover damages in it. Instead, section 2(b) of the IWDA provides that “[t]he amount recovered in any such action shall be distributed by the court . . . to each of the surviving spouse and next of kin.” So even if the personal representative isn’t related to the decedent at all, the proceeds from the wrongful death lawsuit will still benefit the family.
What Damages Are Available in a Wrongful Death Lawsuit?
Section 2(a) of the IWDA authorizes damages for “the pecuniary injuries resulting from [the] death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.” In addition to the items specifically listed in the IWDA, Illinois courts have interpreted “pecuniary injuries” to include things like the loss of money, services, consortium, and society by the surviving family members.
Illinois Wrongful Death Statute of Limitations
The IWDA’s general statute of limitations is two years. So, if a wrongful death lawsuit isn’t filed within two years of a person’s death, then the chance to sue will normally be lost.
However, there are three exceptions built into the IWDA. First, if the defendant was convicted of a crime in causing the death and required to pay into an escrow account under the Criminal Victims’ Escrow Account Act, then the statute of limitations expires two years after that account is established.
Second, if the death resulted from “violent intentional conduct,” the statute of limitations extends for five years from the date of death. Finally if the defendant is charged with certain homicide crimes, then the statute of limitations is one year after the final disposition of that case.
What to Do if You Have a Wrongful Death Claim
Winning a lawsuit won’t bring back the one you loved, but the law still entitles you to compensation for your loss. For help understanding and pursuing your legal rights in a wrongful death lawsuit, contact Costa Ivone, LLC, today for a free initial consultation.