What are my legal options when a wrongful death occurs?

February 22, 2022


Brent Eames

When tragedy strikes, and a loved one loses their life, it will have a devastating impact on a family. When a personal injury results in death, the law in Illinois can allow the loved ones of the deceased to seek damages against the responsible persons and entities for the damages caused by the sudden and tragic loss. The process can be complex and daunting. Our top Chicago personal injury attorneys are experienced in representing the families of deceased victims and helping to ease the financial burdens and devastating impacts caused by the loss of a loved-one. Keep reading to learn more about your options when a loved one loses their life as a result of the negligent or intentional acts of someone else.

Illinois Wrongful Death Act

            The Illinois Wrongful Death Act, 740 IIl. Comp. Stat. 180/, is a law which allows the surviving spouse or the next of kin of the person who died to bring a legal claim to recover damages against the person or entity that caused the incident. For example, a spouse, children, adopted children, parents, or adopting parents of the deceased can file a lawsuit to recover damages for the loss of the loved one who was killed as a result of a construction accident, car accident, or any other type of case based in personal injury.  To successfully recover under the provisions of the Act, the plaintiff has the burden of proof to establish that the person or entity who caused the accident leading to the death owed a duty to the decedent, that that person breached the duty, that the breach proximately caused decedent’s death, and the spouse and/or next of kin suffered damages as a result.

In order to pursue a claim for wrongful death, a special administrator has to be appointed to prosecute the case.  The special administrator should be appointed prior to filing a lawsuit for wrongful death. However, sometimes courts can allow the appointment of the special administrator after the case was filed if the relation-back doctrine applies. For this to happen, the original complaint needs to be filed within the statutory permissible period and the cause of action needs to grow out of the same transaction or occurrence as described in the original, timely filed complaint. As a general rule, the Wrongful Death Claim has to be brought within 2 years after the death of the person whose spouse or next of kin is filing a claim. The time to bring a claim can differ based on the age of the person entitled to benefits or the cause of death that triggered the lawsuit, such as violent intentional conduct, for example.

It is also important to mention that if the wrongful death lawsuit beneficiary was contributorily negligent, that is contributed to the death of the decedent, the recovery under the Act can be barred.  

Illinois Survival Act

The claim under the Illinois Survival Act, 755 ILCS 5/27-6, can also be brought if the death of the person resulted from the actions of the third party. However, in contrast to the wrongful death claim, under the provisions of the Survival Act, the decedent’s estate brings the legal claim on the behalf of the decedent himself or herself to recover damages incurred prior to dying. The action can be brought only by the administrator or executor of the decedent’s estate. In Cook County, if the Plaintiff in the lawsuit brought under the Survival Act is appointed by the Probate Division, then all proceedings pertaining to the distribution and administration of any settlement are conducted in Cook County Probate Division.

Damages compensable under the Survival Act are calculated from the moment the decedent suffers an injury as a result of the act of another until the moment he or she dies. Some examples of damages that can be recovered are medical bills, lost earnings, or any other damages the decedent could have recovered if he or she survived. Damages for pain and suffering are also compensable under the Survival Act however in order to recover those damages the plaintiff needs to establish that decedent consciously experienced pain and suffering, however, briefly. The time to file a claim under the Survival Act is generally two years from the date the decedent discovered the action.

Nevertheless, although there are significant differences between Illinois Wrongful Death Act and Illinois Survival Act, the claims under these statutes can be brought in one complaint and are not mutually exclusive.

The Eames Law Group is an experienced law firm that guides people who have suffered serious personal injuries. They help residents of Illinois gain their lives back after accidents, by managing medical bills and financial setbacks. Brent Eames has been recognized as one of the best personal injury lawyers in Chicago who will help people obtain the appropriate compensation and medical assistance after suffering an injury. For more information, contact us to meet with the Eames Law Group and learn about the legal services they offer.

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