Congress, as well as our state lawmakers here in Illinois and Indiana, have all recognized the need for statutes that help provide justice in the aftermath of a victim’s death caused by the actions, or failures to act, of another. As the United States Supreme Court explains in The Tungus v. Skovgaard, 358 U.S. 588, 593, 79 S. Ct. 503, 3 L. Ed. 2d 524 (1959):
The policy expressed by a State Legislature in enacting a wrongful death statute is not merely that death shall give rise to a right of recovery, nor even that tortious conduct resulting in death shall be actionable, but that damages shall be recoverable when conduct of a particular kind results in death. It is incumbent upon a court enforcing that policy to enforce it all; it may not pick or choose.
Accordingly, it is important for those grieving the loss of a loved one or family member in our part of the country to understand there may be legal redress available for their tragedy, even as they come to grips with their devastating loss. For more, read Fatal Accidents and Wrongful Death Lawsuits in Indiana and Illinois.
What is a Wrongful Death Action?
Depending upon the circumstances, a civil claim may be asserted and a lawsuit may be filed in civil court for damages arising out of the defendant’s knowing or negligent conduct that caused the victim’s death. These cases are defined by specific statutes. They are asserted not only by the personal representative of the decedent’s estate but by those family members and legal dependents of the deceased as identified in the statute. Not every family member is eligible to seek these damages; a second cousin or a sister-in-law may not have standing, while a widow or minor child clearly will have the right to file a claim.
Wrongful death cases can be based upon all sorts of horrific events, where the death has been caused by mistake or negligence as well as situations where someone has died because of another’s intentional or cavalier bad acts. Wrongful death claims involve things like:
- Motor vehicle accidents;
- Semi-truck crashes;
- Defective products;
- Failures to warn (warning labels; signs);
- On the job slip and falls;
- Factory accidents;
- Criminal acts;
- Medical malpractice; and
- Hospital malpractice.
For more, see: Indiana’s Dr. Weinberger, The Nose Doctor, Finally Faces Kenneth J. Allen and a Jury: $13,000,000 Wrongful Death Verdict; You Got What You Deserve; Chicagoland Delivery Drivers: Workplace Violence Injury Claims; and Industrial Accidents in Indiana and Illinois: Serious Injury or Death on the Job.
Different Laws May Apply
Sometimes the state law will apply; in other situations, there will be a federal wrongful death statute that controls the matter. For more, consider the example given of a fatal motor vehicle accident involving a United States Postal Service delivery truck in Mittal, Rakesh A. “The accrual of wrongful death claims under the FTCA.” The University of Chicago Law Review (2015): 2169-2207.
After any fatal accident or injury, accordingly, it is vital that the victim’s loved ones and their estate representative institute an independent and thorough investigation into the event and resulting death in order to determine all those parties who may have violated or breached legal duties of safety and care and as a result, contributed to the fatal result.
The scope of legal responsibility, especially in complex accidents like factory accidents or motor vehicle crashes, often is not obvious or known for days, weeks, or even months after the event itself.
The contributions of accident reconstruction experts in these matters as well as that of modern technologies and software cannot be undervalued here. For more, read Accident Reconstruction Experts and Injury Claims; EDRs and Black Box Recordings in Car Crashes: Technological Data as Evidence of Fault in Personal Injury Claims; and Black Box Data in Semi-Truck Crashes: The Importance of EDR Evidence.
Federal Tort Claims Act
There will be instances where the Federal Tort Claims Act (“FTCA”) (28 §§U.S.C. 1291, 1346, 1402, 2401, 2402, 2411, 2412; 2671-2680) will form the basis of a wrongful death action. It provides justice in the event that an employee of the federal government is culpable for the fatality. FTCA wrongful death claims proceed under 38 CFR §14.600(a), which explains that the FTCA provides:
a uniform procedure for handling of claims against the United States, for money only, on account of damage to or loss of property, or on account of personal injury or death, caused by the negligent or wrongful act or omission of a Government employee while acting within the scope of his or her office or employment, under circumstances where the United States, if a private person, would be liable in accordance with the law of the place where the act or omission occurred.
Illinois
The Illinois Wrongful Death Act controls cases within the Land of Lincoln that are not covered by specific federal wrongful death claims. This statute provides that a “wrongful death” is something that would have allowed the decedent to file a personal injury claim if the person had not succumbed to their injuries. The law directs certain named family members to pursue these injury claims in lieu of the decedent. The Illinois Survival Act also applies in these matters. It allows the decedent’s estate to recover damages on behalf of the decedent. These claims must be filed within the deadline provided by law.
Illinois wrongful death claims are complicated. An Illinois wrongful death suit compensates the family, while an Illinois survival lawsuit compensates the deceased person.
Indiana
The Indiana legislature has passed a series of laws dealing with wrongful death claims. They are: the General Wrongful Death Statute (Indiana Code §34-23-1-1); the Adult Wrongful Death Act (Indiana Code §34-23-1-2); and the Child Wrongful Death Act (Indiana Code §34-23-2-1).
The General Wrongful Death Statute applies when the decedent had a spouse or dependents, while the Adult Wrongful Death Act applies when the decedent was not married and had no legal dependents. The Child Wrongful Death Act applies to those who perished before reaching legal adulthood, defined by the Act as someone under the age of twenty (20) years or in some instances, twenty-three (23) years of age.
As with the State of Illinois, the wrongful death laws of the Hoosier State are complex. In both jurisdictions, it is wise for the claimants to gain the support of an experienced wrongful death advocate as soon as possible, not only to proceed properly under the law but because there are legal deadlines for filing.
Damages After a Wrongful Death in Illinois or Indiana
Claimants after a wrongful death will be defined by the specific statute that applies in the case. Family members and dependents may be able to file claims for damages as “survivors” or “beneficiaries.”
In the event that a settlement cannot be reached, these matters can proceed to trial for a jury’s determination of justice. Juries can award damages based upon authenticated and admissible evidence provided by the claimants (now proceeding as named plaintiffs in the lawsuit).
The defendants must be shown to have been either a direct cause of the deceased’s death or that their actions or failures to act are a contributing factor directly associated with the death. There can be more than one defendant in a wrongful death case.
After proving liability, the plaintiffs also have the burden to prove up various things in support of their damage claims.
The plaintiffs will have to provide witnesses, documents, and other evidence of things like the income of the decedent at the time of their death, as well as forensic forecasts provided by experts of their future earning capacity. This will allow for damages covering not only lost wages but the loss of the decedent’s lifetime earnings.
Other damages that may be compensable include things like:
- Funeral expenses;
- Burial costs;
- Pain and suffering of the decedent;
- Emotional harm;
- Medical expenses incurred after accident until death;
- Loss of inheritance; and
- Loss of companionship / consortium.
Punitive damages may be available in some instances if the plaintiff’s proof demonstrates intentional or reckless misconduct on the part of the defendants. For more on punitive damages, read Corporate Greed That Disregards You and Me: The Importance of Punitive Damage Awards.
Wrongful Death Claims for Justice in Indiana and Illinois
It is particularly heart wrenching for advocates of injured victims to represent grieving loved ones in the aftermath of a fatal injury caused by intentional misconduct or a preventable accident. Having the ability to help them fight for justice against those who are legal responsible for the tragedy provides not only satisfaction but a worthy purpose.
As legal advocates for these victims and their loved ones, we find it to be a privilege to be able to help those who are honorably seeking justice for those who have lost their lives due to the wrongful actions of another.
Sadly, it has been our experience that all too often in these deadly incidents, those who are responsible will not come forward and acknowledge their wrongdoing but instead, they will fight hard to minimize or even thwart legal liability for the death and the suffering of the survivors. Insurance adjusters and defense attorneys are notoriously aggressive in their maneuvers to discount or deflect responsibility for monetary damages due to the deceased’s estate and the surviving loved ones.
For more, read:
- Wrongful Death Laws: In Fatal Accidents, Who Should Pay for the Family’s Legal Fees?
- Wrongful Death: Indiana Statutes, Attorneys’ Fees, Trial Tactics;
- 10 Things to Know About Wrongful Death in Indiana Accidents;
- OSHA Targets Construction Workers’ Risk of Wrongful Death from Falls While Working on the Job;
- Deadlines for Injury Victims to File Lawsuits: Statutes of Limitations.
If your loved one has perished after suffering serious personal injury in Indiana or Illinois, it is important to know there are wrongful death laws that give avenues for justice to the victim and their loved ones. Please be careful out there!
