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Wrongful Death
Whenever the death of a person is caused by the wrongful act or negligence of another person, an action may be maintained to recover damages suffered as a result of the death. Actions for wrongful death may arise in a variety of settings. These cases include car, truck or motorcycle accidents, medical malpractice, premises liability, product liability and construction accidents. In Illinois, the Wrongful Death Act creates a cause of action in the name of the personal representative of the estate of the decedent for the benefit of the "next of kin".
Who May Recover Damages for the Death of Another?
The Wrongful Death Act provides that the "next of kin" of the decedent may recover damages for the death of a loved one. "Next of kin" may include the widow, surviving children, parents or siblings of the decedent.
What Type of Damages May be Recovered?
The next of kin of the decedent may recover damages for their "pecuniary injuries". "Pecuniary injuries" includes money, goods and services received by the next of kin of the deceased. Where there are surviving children, it also includes the instruction, moral training and education that they would have received from the deceased parent. "Pecuniary injuries" also includes the loss of the spousal relationship.
The law in Illinois presumes that when the decedent leaves a spouse, children or parents, they have suffered some substantial loss by reason of the death. This presumption applies even where the decedent was an adult and the next of kin are also adults. It is also possible to recover for the wrongful death of an unborn child if the fetus was viable at the time of the negligent act. The presumption of the parents' loss and injury extends to a stillborn child.
What About the Suffering of the Decedent Before Death?
Under the Illinois Survival Statute, damages for the pain and suffering experienced by the decedent from the time of the injury until the time of death may be recovered. The plaintiff must prove that the decedent actually and consciously endured pain and suffering before death in order to recover. When the death is instantaneous or the decedent is rendered immediately unconscious or comatose, an action for pain and suffering cannot be sustained.
The conscious pain and suffering the decedent experienced is recoverable even if the time interval between injury and death is very short. The duration of the pain and suffering determines the amount of compensation. Whether the decedent experienced pain between the time of injury and the time of death may greatly impact the compensatory value of such a wrongful death claim.
At the Law Offices of John J. Dwyer, Jr., P.C. we have represented people who have lost a loved one due to another's negligence. If you need further information or would like to discuss the circumstances surrounding your loved ones death, please contact our office for a free consultation. |
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