In the simplest terms, wrongful death is where someone is killed as a result the negligence, recklessness or wrongful conduct of another. In the personal injury context, wrongful death may occur as a result of transportation-related accidents, construction accidents, defective products and medical negligence.
A wrongful death claim generally consists of the following four elements:
1. Death caused by the conduct of the defendant
2. Defendant was negligent or strictly liable for the victim’s death
3. There is a surviving spouse, children, beneficiaries or dependents
4. Monetary damages have resulted from the victim’s death
Each state has its own set of rules that govern wrongful death claims. In Illinois, the Illinois Wrongful Death Act (740 ILCS 180/1 et seq.) is used to file a wrongful death claim. The Act covers such things as who can bring a wrongful death claim, the time frame in which a wrongful death claim can be brought and how damages may be awarded. Because of complexities and nuances of the Illinois Wrongful Death Act, it is important to contact a top-ranked Wrongful Death lawyer about your case.
It is important to note a distinction between a wrongful death claim and a regular personal injury claim. In a regular personal injury claim, the injured party brings a suit against the negligent party, be it a hospital, construction contractor or truck driver.
Conversely, a wrongful death claim is brought by the “personal representatives” of the deceased person, typically the surviving spouse or next of kin, of the deceased person. Any recovery is distributed in the proportion, as determined by the court, of dependency of each person on the deceased. The Act also states: “the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person,” unless the deceased person left no surviving spouse or next of kin. Friends, classmates and second cousins do not fall into the “next of kin” category. Adopted parents or children, however, do. The Act clarifies that an adopting parent and an adopted child are considered next of kin, and in wrongful death cases, are to be “treated as a natural parent and a natural child.” So you can file a wrongful death claim, whether your natural child or parent or your adopted child or parent died as a result of another person’s negligence.
740 ILCS 180/2 also outlines how damages may be awarded, reduced or even barred if the decedent was more than 50% comparatively at fault, which contributed to his or her death. Furthermore, as distinguished from typical personal injury actions, the contributory negligence of each beneficiary, or those who stand to collect a portion of the damages award, is also taken into consideration in awarding damages for wrongful death.
Furthermore, unlike a general personal injury lawsuit, the Wrongful Death Act specifically allows the surviving spouse and next of kin to recover damages, “including damages for grief, sorrow, and mental suffering.” This goes beyond the typical elements of damage, including pain and suffering, loss of future income, and medical expenses. Only the best fatal accident lawyer can help you navigate through the Wrongful Death Act and investigate your case to ensure that your rights as a beneficiary are protected ant that you and your family recover the maximum compensation available for your loss.