In Illinois, the Illinois Pattern Jury Instructions (IPI) sets out that there is a rebuttable presumption that states: “Where a decedent leaves (lineal next of kin), the law recognizes a presumption that the (lineal next of kin) have sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for you to decide from the evidence in this case.” IPI Civil 31.04.
Where a decedent leaves direct lineal kin, a widow or widower there is a presumption that these individuals have suffered some substantial pecuniary loss by the reason of the death. Ferraro v. Augustine, 45 Ill.App.2d 295 (1st Dist. 1964). However, there is no presumption on the death of a child that there would be a loss of earnings upon the death of a minor child, but there is a presumption of pecuniary injury to the parents in the loss of a minor child’s society. There are several cases in Illinois that define these circumstances. In fact it is now possible to recover for the wrongful death of an unborn child if the fetus was viable before or at the time of the wrongful act that caused the death.
The Illinois common law did not include a recovery or even a cause of action for wrongful death until the Illinois Wrongful Death Act was enacted into law. An action at common law for personal injuries was abated when the plaintiff died. The law was changed in 1974 when the Illinois Supreme Court in Murphy v. Martin Oil Co., 56 Ill. 2d 423 decided that wrongful death and survivorship were compensable.
Even though this presumption of substantial pecuniary loss would give rise to jury verdicts when the evidence proves the wrongful death of the person, this presumption can be lost on the credibility of witnesses. For example, in most wrongful death cases, the surviving spouse, children or parent of a decedent would likely testify as to the close relationship those persons had with the decedent who had died as a result of some wrongful act or negligence. However, that testimony may be rebutted by other witnesses to testify that the survivors were in fact estranged from the decedent and therefore no damages should be given.
The loss of society damage item, which is allowed in Illinois for wrongful death cases, would be bolstered by testimony of third parties, disinterested persons who would testify about the closeness of the family. Evidence of a close relationship could be enhanced by letters, e-mails, text messages, birthday cards and photographs. In short, Illinois wrongful death claims for loss of society will give rise to substantial pecuniary damages where there is no credible evidence that the survivors who meet the next of kin definition were anything other than estranged. The pecuniary losses in terms of monetary damages would be up to the jury to determine.
Pecuniary loss is defined in the Illinois Pattern Jury Instructions to include loss of money, benefits, goods, services and society. The determination of that pecuniary loss can be based on what the decedent contributed to the next of kin in the past, money or benefits the decedent would likely have contributed in the future, the age of the decedent, his/her gender, health, habits, occupation, grief sorrow and mental suffering of the next of kin and the relationship between the next of kin and the decedent. All of these factors are weighed by the jury. Lawyers representing the decedent’s family should be certain to introduce sufficient evidence to convey the truth about the decedent’s contributions on all levels to his or her family and friends, particularly the next of kin. It will then be up to the jurors to determine the value of the loss.
In addition, since 2007 when the Illinois Wrongful Death Act was amended, the next of kin were allowed to seek damages for the “grief, sorrow and mental suffering” that occurred because of the wrongful death. Before this amendment, Illinois wrongful death cases were limited to pursuing money damages based on their relationship, good, bad or indifferent that was introduced into evidence with the deceased. This relationship could include the loss of society or support.
One issue that was at first still being sorted out in wrongful death cases was how to instruct the jury on grief, sorrow and mental suffering. That dilemma was swiftly resolved by an amended pattern jury instruction, 31.01 which lists “[t]he grief, sorrow, and mental suffering of [next of kin]” as a separate and distinct consideration to be determined by the jury as part of the pecuniary loss. Therefore, the 2007 amendment to the Wrongful Death Act permits the recovery of damages for grief, sorrow and mental suffering of the next of kin. This can be no small piece of the overall damages. It is recommended that lawyers be familiar with the legislative history of the amended jury instruction on this score. Defendants’ counsel regularly attempts to limit this damage item with motions in limine.
If you or someone you know has been died as a result of a wrongful death accident, please call us for an immediate free consultation. Robert Kreisman of Kreisman Law Offices has been handling Chicago and Illinois wrongful death cases for more than 40 years.
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