Written by: Alexis McCain
Before Governor Pritzker signed House Bill 219 on August 11, 2023, Illinois was one of the 16 minority states that did not allow punitive damages in wrongful death cases. Now, for the first time in the State of Illinois, the estate of decedents can seek punitive damages under the Wrongful Death and Survival Acts. 1 (740 ILCS 180/1, 740 ILCS 180/2) and Survival Act (755 ILCS 5/27-6) Black’s Law Dictionary defines Punitive damages as ‘having the character of punishment or penalty; inflicting punishment or a penalty.”2 In simple terms, punitive damages are designed to punish wrongdoers and deter similar behavior. The role of punitive damages in wrongful death cases is to provide financial compensation for the deceased and their estate. The amendment’s purpose is to allow a decedent’s estate to obtain punitive damages using the same standard as a living plaintiff who suffered a personal injury. Attorneys in Illinois are finally able to seek punitive damages in cases where justice requires it, specifically in wrongful death suits.
The Effect of Punitive Damages in Civil Suits
Punitive damages have the power to increase settlement awards significantly. For example, a Cook County Jury granted $325 million in punitive damages on top of $38 million in compensatory damages to Sue Kamuda, after she developed breast cancer in 2007 while living near a medical sterilization plant. 3 This is just one example of the effect of punitive damages.
There are three types of damages plaintiffs may seek in civil lawsuits: compensatory, nominal, and punitive. 4 Each category of damages is unique in characteristics and is awarded differently. For instance, the average compensatory damages (economic and non-economic damages, such as hospital bills, and pain and suffering) in a personal injury suit is $26,624 or more. 5 On the other hand, nominal damages (A plaintiff is awarded a trivial amount of money when they prove a violation but do not prove harm) are typically awarded in the sum of $1.00. A 2005 study conducted by the U.S. Department of Justice shows that punitive damages may be awarded up to $55,000. However, the study was conducted in 2005 due to Illinois only awarding punitive damages in less than 3% of personal injury cases. 6
When Are Punitive Damages Awarded
Although the jury will use its discretion to award punitive damages, this particular award is rare. Specifically, punitive damages are typically awarded only if there is evidence that the wrongdoer acted with gross or intentional conduct, mere negligence is not enough. Negligence is a breach of duty owed to the plaintiff. However, gross, or intentional conduct, also known as willful and wanton conduct, is harder to prove because the plaintiff must show that the defendant deliberately intended to harm the plaintiff. 7
The Future of Illinois After Amending the Law
In the near future the new law may be challenged by the insurance lobby, republicans, and business groups. Businesses are opposed to the new law because insurance policies typically do not include punitive damages. 8 Businesses fear that their risk of being sued has increased due to the changes of the law. Specifically, small business owners because one punitive damage verdict can cause their business to either go bankrupt or close down. 9
On the bright side, grieving family members will have the opportunity to seek punitive damages. Additionally, there may be an increased number of punitive awards in Illinois since they are rarely awarded in personal injury cases. There may be more punitive awards in 2024.
The amendment to the wrongful death and survival acts gives grieving family members the opportunity to seek punitive damages in wrongful death cases. Although, no amount of money can cure a wrongful death of a loved one, punitive damages are to lift financial burdens that are natural after a loss. While awarding punitive damages for wrongful deaths may advantage estates and plaintiff attorneys, the new law may disadvantage business owners. There may be challenges to the expansion of the law in the future.
2 The Law Dictionary, Punitive Definition and Legal Meaning.
3 Hannah Meisel, Capitol News Illinois, Dems move to allow punitive damage awards in wrongful death lawsuits, Illinois would join 34 other states, but business groups claim move will increase costs (May 19, 2023)
6 Hannah Meisel, Capitol News Illinois, Dems move to allow punitive damage awards in wrongful death lawsuits, Illinois would join 34 other states, but business groups claim move will increase costs (May 19, 2023)
7 28 Ill. Law and Prac. Negligence § 9