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If you recently experienced the death of a loved one and believe that the actions of another person are responsible for that death, you may be asking yourself, how do you prove wrongful death in Illinois? If you’re considered filing a wrongful death lawsuit, the following article will address some important questions regarding wrongful death cases in the state of Illinois.

How Does Illinois Define “Wrongful Death”?

To answer the question, how do you prove wrongful death in Illinois, let’s first look at Illinois’ Wrongful Death statute, 740 ILCS 180. Under this statute, a wrongful death is defined as a person’s death resulting from another person’s wrongful conduct or negligence. If the decedent would have been able to bring a personal injury claim had they survived, a surviving party (for example, a parent or spouse) can bring a wrongful death claim on the decedent’s behalf.

What Do I Need to Prove in a Wrongful Death Case?

Most wrongful death claims are typically settled outside of the courtroom. However, if you reject a settlement offer and your wrongful death case proceeds to trial, there are 4 major elements of a wrongful death claim that you will need to prove for your claim to be successful. These four elements are duty, breach, causation, and damages.

1. Duty

First, you need to prove that the defendant owed a duty of care to the decedent. Typically, a duty is owed to all foreseeable persons who may be injured by the defendant’s failure to act as a reasonable person would under similar circumstances. Additionally, if a defendant’s conduct creates a “zone of danger,” they are responsible for the resulting injuries of those within that zone of danger. For example, one of the duties drivers owe to other drivers and pedestrians is not to break traffic laws and drive while intoxicated. If a driver does drive while intoxicated and gets in a car accident that was the cause of death of another driver, they have violated their duty to that driver.

2. Breach

After establishing that the defendant owed a duty to the deceased person, you will next need to establish that the defendant committed a breach of duty. However, it can sometimes be difficult to prove exactly how a defendant breached a duty to the decedent. The principle of res ipsa loquitur rectifies this issue. Under this principle, a plaintiff can still prove that a defendant breached his duty to the decedent if the plaintiff can show all of the following:

• The incident that resulted in death is the type of incident that does not typically occur in the absence of negligent act
• The incident that resulted in death was caused by an instrumentality within the defendant’s dominion or control
• The decedent did not contribute to their own injuries

3. Causation

After establishing duty and breach, you must establish that there was causation between the defendant’s conduct and the decedent’s death. There are two types of causation that you must prove. First, you must prove actual causation, meaning that the death would not have occurred but for the defendant’s wrongful act. Secondly, you must prove proximate causation, meaning that the decedent’s death was within the realm of potential harms that could have likely resulted from the defendant’s conduct.

4. Damages

Lastly, you will need to prove that in addition to the death of the decedent, the defendant’s negligence also resulted in some kind of damage to you. Because justice in wrongful death cases are represented by monetary awards, providing evidence of the specific types of damages you have suffered is crucial to the success of your case. There are four main types of damages that you could provide evidence of in court, which are:

• Economic (special) damages: Economic damages are the most commonly awarded damages in wrongful death cases and include compensation for medical bills, funeral expenses, as well as for lost wages and any future earning potential of the decedent.
• Noneconomic (general) damages: Noneconomic damages are awarded by juries and include compensation for pain and suffering, emotional distress, and loss of companionship. These types of damages can often be difficult for a jury to quantify but the more evidence that is provided to show the impact that the decedent had on the survivors, the better.
• Punitive damages: Punitive damages are awarded at the discretion of the court and are meant to discourage future egregious conduct from defendants. Because it is up to the court to decide whether to assess punitive damages, these damages are not necessarily guaranteed in wrongful death cases.
• Treble damages: Treble damages are also awarded at the discretion of the court. These are typically awards of up to three times the amount of certain damages (for example, if there is an economic damage award of $10,000, a judge can award treble damages of up to $30,000).

Is a Wrongful Death Case a Criminal or Civil Matter?

Because in wrongful death cases, the actions of the defendant caused the unnecessary death of another, it might seem like a wrongful death case is a criminal matter but it is actually a civil matter. There are major differences between criminal and civil cases.

First, in a civil case, justice is represented by a monetary award; in a criminal case, justice is usually represented by imprisonment, probation, or fines.

Second, civil matters are typically brought to the court by average citizens. For example, in a wrongful death civil suit, the surviving family members are usually the individuals who bring wrongful death claims to civil court. Conversely, criminal matters are brought to the court by either the state or the federal government. A state prosecutor, for example, might bring charges against a defendant for the crimes of murder or manslaughter.

Third, the degrees of proof are different in civil cases and criminal cases. In a wrongful death civil case, the judge or jury must be persuaded by a preponderance of the evidence (meaning it is more likely true than not) that the defendant’s actions caused the death. In criminal cases, the required level of proof is beyond a reasonable doubt, which means that a defendant could be exonerated if there is any reasonable doubt that he is actually guilty of the acts he is accused of committing. This criminal level of proof is a very high standard for prosecutors and typically requires more extensive evidence than a civil trial does.

However, it should be noted that in tort law, a wrongful death civil suit does not preclude a defendant from being held criminally liable for his actions. A defendant could be tried in civil court for his conduct and subsequently (or simultaneously) tried in criminal court for the same conduct. For example, in a drunk driving case that kills several people, the driver may have to defend themself in a civil wrongful death trial while simultaneously having to defend themself in a criminal manslaughter trial.

How Long Do I Have to Bring a Wrongful Death Claim in Illinois?

In wrongful death suits, timing is of the essence. It is imperative to bring a wrongful death claim as soon as feasible to ensure that your claim will be litigated in a timely manner.

According to 740 ILCS 180.2(d), a claimant has two years from the date of the deceased’s death to file a wrongful death claim. Additionally, 740 ILCS 180.2(e) gives a claimant five years from the date of the deceased’s death to file a wrongful death claim if the death was the result of violent intentional conduct. This section also states that a wrongful death claim can be brought within one year of the defendant’s criminal conviction if the defendant is charged with any of the following:

• First degree murder
• Intentional homicide of an unborn child
• Second degree murder
• Voluntary manslaughter of an unborn child
• Involuntary manslaughter or reckless homicide
• Involuntary manslaughter or reckless homicide of an unborn child
• Drug-induced homicide

How Do I Determine Whether I Have a Wrongful Death Claim?

You must determine whether you have a wrongful death claim before you decide whether to contact a personal injury attorney to handle your case. To determine whether you have a wrongful death claim, ask yourself the following two questions:

• Did you lose a loved one due to the intentional act or negligence of another person?
• Did you suffer financial and/or emotional damages directly resulting from this death?

If you answer “Yes” to these two questions, you may have a valid wrongful death claim and should contact a personal injury attorney as soon as possible to get assistance with filing a lawsuit. An attorney can let you know what kind of evidence you will need to support a successful claim and ensure that you understand what types of damages you are entitled to receive. Before you contact a wrongful death lawyer, it may be helpful to gather some evidence of your own (i.e. photos, witness statements, police reports, etc.) to give the attorney a better perspective of what occurred.

Do You Have a Potential Wrongful Death Claim? Our Firm Can Help

If you believe that you have a wrongful death claim, we want to help. The Palermo Law Group is a personal injury law firm located in Oak Brook, IL. Mario Palermo is a wrongful death attorney who will help you determine if you have a wrongful death claim and ensure that you receive any compensation to which you are entitled. You can schedule a free consultation appointment to discuss your claim with one of our experienced personal injury attorneys by using this online form.