The Illinois legislature recently passed a bill that amends the Illinois Wrongful Death Act to allow for the potential recovery of punitive damages in certain wrongful death cases. This is the first time in 130 years that punitive damages are available for wrongful death claims under Illinois law. Here is what you should know about this evolving matter.
The Former Law
Under the prior Illinois Wrongful Death Act, there was no explicit right to recover punitive damages. Since the Wrongful Death Act was passed to create a remedy where one did not exist before, the damages available are only those specifically listed. Different types of damages can be awarded in a personal injury or wrongful death case. Economic damages are those damages that can be quantified and cause a direct economic loss, such as medical expenses, lost wages, and property damage. Non-economic damages compensate the victim for damages they suffer that are not as tangible and that cannot easily be quantified but still represent substantial harms and losses that victims experience, such as loss of love, affection, society, grief, pain, suffering, and mental anguish. Collectively, economic and non-economic damages are called compensatory damages.
Punitive damages are not compensatory damages – they are not meant to compensate the victim. Instead, they are intended to punish the defendant for particularly egregious willful and wanton behavior and deter similar conduct in the future.
For 130 years, claimants were not expressly given the right to recover punitive damages in typical wrongful death cases. Punitive damages had not been available for claimants under the Illinois Survival Act or common law wrongful death claims unless there was specific statutory authority or very strong equitable reasons.
About the New Law
The amended Wrongful Death Act states that punitive damages can be recovered in a wrongful death action under the wording of House Bill 0219. The changes allow heirs to recover punitive damages in certain types of wrongful death cases after they lose a loved one due to willful and wanton conduct.
There are some exceptions to when punitive damages would not be available, including in actions:
- For healing art malpractice
- For legal malpractice
- Against the State or government
- Against a governmental employee acting in their official capacity
Reason for the Changes
Supporters of the change stress how exceedingly rare punitive damages are. The Illinois Trial Lawyers Association reports that only 18 personal injury cases have awarded punitive damages in excess of $10,000 in the last ten years. Additionally, U.S. Department of Justice data shows that punitive damages were only awarded in 3% of personal injury cases, with only 1% awarded in premises liability, product liability, and car crash cases.
Before the passage, Illinois was one of only 16 states that did not permit punitive damages in wrongful death cases. Instead, heirs were only permitted to recover compensatory damages even when willful and wanton conduct occurred, whereas personal injury victims who survived the incident were allowed to also recover punitive damages. The new changes make the law consistent so that heirs can recover the same damages that would be available to the original claimant had they survived the incident.
Contact a Wrongful Death Lawyer for Help with Your Claim
If you have any questions about the changes in the law or would like to know your rights following the death of a family member, reach out to a compassionate Illinois wrongful death lawyer from Rapoport Weisberg & Sims P.C. We provide a free consultation where you can discuss your legal rights and options in a confidential setting. Contact us today to learn more.Related: Illinois Wrongful Death Statute of Limitations
