Wrongful Death and Survival Act Litigation

When an individual or a group of people cause the death of someone else, either willfully or by a negligent act, then the family or legal beneficiaries may be entitled to commence a wrongful death action against the party or parties they feel are responsible. In Illinois, these cases are covered by the Wrongful Death Act, "The Act" (740 ILCS 180/).

Section 1 of the Wrongful Death Act provides that:

Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. No action may be brought under this Act if the decedent had brought a cause of action with respect to the same underlying incident or occurrence which was settled or on which judgment was rendered.

In Illinois, there are no limits on how much a jury or a judge can award the decedents estate. The Act only requires that the award for damages be fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering to the surviving spouse and next of kin of such deceased person.

When there are surviving children, damages also include the instruction, moral training and superintendence of education that the children would have received from the deceased parent. Pecuniary injuries also include the loss of consortium if a surviving spouse, the loss of society related to the death of a parent or the parent's loss of an unmarried adult child.

Another important area of Illinois law which often comes into play in an accident resulting in the death of another is the Illinois Survival Act. The Survival Act is found under the provisions of the Probate Act. The Survival Act provides as follows:

In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in section 6-21 of "an act relating to alcoholic liquors." 755 ILCS 5/27-6. 3.

Under the Survival Act the recoverable damages include the conscious pain and suffering, disability, lost wages, and related medical expenses suffered by the deceased before his or her death.

Wrongful death and Survival cases often stem from fatal auto accidents, medical malpractice, aviation disasters, construction site accidents. If you believe you have a case for a wrongful death lawsuit, contact Holman & Stefanowicz, LLC today. Our experienced lawyers can help your family fight for damages resulting from the death of a loved one, please call us at 312-258-9700.

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