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What Is a Wrongful Death Lawsuit?

What is a wrongful death lawsuit? When a victim dies due to another person’s wrongful actions, his or her family members can file a wrongful death lawsuit to recover damages. In legal terms, a wrongful death lawsuit deals with the death of one person that’s caused by the carelessness, disregard, negligence, or wrongful conduct of another person.

What Are the Wrongful Death Laws in Illinois?

The term “wrongful death” relates to the death of one person caused by the wrongdoing of another person. Wrongful death cases in Illinois are commonly linked to car accidents caused by drunk or impaired driving, reckless driving, and speeding, as well as medical malpractice that involves negligent and wrongful actions of a hospital or medical professional. When wrongful death occurs, family members of the victim have the legal right to recover damages on the deceased person’s behalf by filing a wrongful death lawsuit against the guilty party. However, before filing, you must understand state wrongful death laws because legal requirements can vary from state to state.

In Illinois, a wrongful death lawsuit is defined by legal requirements and statutes according to the Illinois Wrongful Death Act and the Illinois Survival Act:

  • Illinois Wrongful Death Act – Prior to the Wrongful Death Act established in 1853, families of wrongful death victims could not seek legal action for the death of a family member. They could only seek damages for losses they personally incurred due to the death.
  • Illinois Survival Act – Prior to the Illinois Survival Act established in 1873, families of wrongful death victims could only claim their own damages, not the victim’s damages. This act gave family members the right to recover damages through the victim’s estate.

Who Can File a Wrongful Death Lawsuit in Illinois?

While many states allow family members of deceased individuals to file a wrongful death lawsuit in civil court, that is not the case in Illinois. In Illinois, the law states that any wrongful death legal claim must be filed by an appointed personal representative, often referred to as the executor of the deceased person’s estate.

If the deceased person dies without an estate plan or a will appointing a personal representative, the court can appoint a personal representative. The appointed personal representative will be responsible for filing a wrongful death claim in civil court, as well as carrying out other tasks that are related to estate issues. In most cases, a family member of the deceased becomes the personal representative, but family friends, accountants, estate managers, and Illinois wrongful death lawyers can also be appointed by the court.

Are There Time Limits for Filing a Wrongful Death Lawsuit?

Like most states, Illinois has strict time limits for filing a wrongful death lawsuit. This time limit is referred to as the Statute of Limitations. Generally, the statute of limitations for wrongful death claims is two years from the time of death. In cases that involve manslaughter, murder, and other violent intentional conduct claims, the statute of limitations is extended to five years.

What Are the Elements of a Wrongful Death Lawsuit?

Wrongful death occurs when a person or entity fails to fulfill a legal duty, and that failure results in death to another person. When death occurs, a wrongful death lawsuit can be filed by surviving family members or by an appointed personal representative from the deceased’s estate. To understand what is a wrongful death lawsuit and successfully recover compensation, you must prove these three important elements:

  • A person or entity behaved negligently or committed an intentional wrongful act
  • The person’s actions were the direct cause of the death
  • The person’s death resulted in damages

If you can prove these elements, you have grounds for a wrongful death lawsuit. The surviving family members or the estate of the deceased can be awarded compensation by an Illinois court, through a settlement by the party who caused the death, or the liable party’s insurance provider.

Wrongful death lawsuits are similar to personal injury lawsuits, except personal injuries don’t always result in death. While personal injury victims can file claims or negotiate settlements on their own behalf, wrongful death claims and settlements must be handled by an appointed representative of the victim’s estate in Illinois. When personal injuries occur in Illinois, it’s best to talk to a lawyer who can explain the personal injury claim process and the advantages and disadvantages of a civil court trial and a settlement.

Negligence or Wrongful Act Leading to Death

Wrongful death cases can occur in any situation where a death is caused by someone’s negligence or by intentional wrongdoing. Negligence, carelessness, disregard, and wrongful conduct are responsible for the majority of wrongful death lawsuits. Cases commonly involve:

  • Car accidents
  • Construction site accidents
  • Slip and fall accidents
  • Medical malpractice
  • Defective products

Medical malpractice cases are different from simple negligence cases because the lawsuit must prove that the medical professional acted with a level of care below the professional standard level of care.

Damages and Losses Suffered by the Surviving Family Members

Family members of wrongful death victims can be awarded compensation for the damages they suffered due to their family member’s death. Damages include both compensatory and punitive damages:

  • Compensatory Damages – These damages are awarded for tangible losses from wrongful death. Compensation usually covers medical expenses, lost income, and litigation costs. Damages may also be awarded to cover subjective losses such as emotional distress, pain and suffering, and loss of consortium due to the victim’s death.
  • Punitive Damages – These damages are awarded to punish the responsible party for negligence or wrongdoing. Cases involving companies or large entities whose negligence or wrongful actions have caused death often involve medical malpractice and product liability.

Steps Involved in a Wrongful Death Lawsuit

If you believe your loved one died due to negligence or an intentional wrongful act, speak with an attorney as soon as possible about filing a wrongful death lawsuit. You must have grounds for a wrongful death lawsuit and file the lawsuit in a timely manner. An experienced attorney can help you through the phases of the lawsuit process.

Investigation and Gathering Evidence

In a wrongful death lawsuit, there will be an investigation into how the death occurred. Evidence must be gathered to support your lawsuit and prove that negligence or wrongful actions were the cause of death. Evidence should include medical documentation that shows catastrophic injuries, the cause of death, and a death certificate. Your attorney can explain a catastrophic injury, gather evidence to support your claim, and work with investigators and insurance companies during the process.

Filing the Wrongful Death Lawsuit

A wrongful death lawsuit must be filed in an Illinois civil court in the proper jurisdiction. Hiring an attorney to file your wrongful death lawsuit and represent you in court is necessary. You need an experienced Illinois wrongful death attorney who handles these types of cases and understands the requirements of the legal system. Pre-trial and trial happen during the litigation phase. During the trial, the judge or jury will listen to both sides, issue a verdict, and assign monetary damages.

Discovery Phase and Negotiations

During the discovery phase, evidence gathered by the plaintiff’s attorney and the defendant’s attorney are exchanged. For the most part, the discovery phase happens out of court. Generally, the kind of information that a party can force someone else to reveal is very broad. Attorneys may ask for facts about the case, the identity of others who may know something about the case, documents relating to the case, and inspection of physical objects or property connected to the case. Discovery can be used to seek information not only from the other party to the lawsuit, but also from people and businesses that aren’t involved in the legal proceedings.

Settlement or Trial

To consider a settlement, your attorney will prepare and send a demand letter to the liable party’s insurance provider after determining the value of your case. Calculations will include the costs of the deceased person’s funeral expenses, medical bills, lost income, loss of support, and pain and suffering of the surviving family members.

To reach a settlement agreement, your attorney will request the highest settlement amount based on the defendant’s insurance coverage limit. The insurance company will likely reject the offer and counter with a low-ball settlement offer. Lengthy negotiations may be necessary before a reasonable settlement agreement is reached. If a settlement agreement can’t be reached, your attorney will file a complaint and other supporting documents with the circuit court clerk’s office, and you may need to file a wrongful death lawsuit in civil court.