Until 2007, wrongful death claims filed by next of kin could not include claims for sorrow, mental suffering or grief in Chicago or throughout Illinois. The family member was limited under the Wrongful Death Act to pursue a claim for loss of support or society based on their relationship with the deceased.
With the amendment to the Act in 2007, the circumstances of grief, sorrow and mental suffering are considered separate line items for the jury to consider separately from the amounts awarded for loss of support or society. While this change has been welcomed, it does present challenges for plaintiff and the lawyer who represents him or her in the wrongful death case.
What is Loss of Society?
Under the 2011 edition of jury instructions for the Wrongful Death Act, loss of society is defined as “the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” Loss of support falls under this category as the deceased may have been the may have been the sole provider for the family or made a substantial contribution to the family finances.
When a wrongful death occurs because of an initial tortious injury, the next of kin is entitled to pecuniary injuries. This term refers to benefits that have a pecuniary value and would include what the next of kin would have received from the deceased, including money, goods and services
When surviving children are in the picture, additional pecuniary injuries may be considered for services they would have received from the deceased parent, such as:
- Moral training
- Superintendence of education
While many factors go into determining pecuniary loss, three have been excluded:
- The deceased’s pain and suffering
- The next of kin’s financial status
- The next of kin’s grief
The 2007 amendment to the Wrongful Death Act has been so important because it allows the next of kin the ability to seek damages for his or her own suffering that has been caused by the act of a wrongful death.
Challenges Still Exist for Grief Claims
Despite the 2007 amendment to the Wrongful Death Act, a plaintiff may still face a challenge in proving grief, sorrow or mental suffering in wrongful death claims. His or her wrongful death lawyer may need to decide whether to pursue one or all three as separate line items in their lawsuit or as a combination. In court, the defense may push the plaintiff’s counsel to elaborate on how grief, sorrow and mental suffering differ from one another or whether relevant to the wrongful death suit.
The defense counsel may attempt to prohibit testimony from lay witnesses and push for testimony only from the next of kin. Expert witnesses, including mental health professionals are generally not excluded from testimony. If lay witnesses, such as friends, colleagues or other family members testify on the next of kin’s behalf, they may be instructed by the judge not to mention the words grief, sorrow or mental suffering. These witnesses would provide a view of the mental suffering that the plaintiff has been experiencing. The lay witnesses would then be followed by an expert witness, such as a psychiatrist who would give context to the witnesses’ observations. Having background testimony from lay witnesses and expert witnesses help make the plaintiff’s grief and sorrow claim more effective.
Who Can File a Wrongful Death Claim?
A wrongful death claim is normally filed by a representative of the deceased individual’s estate. The representative may be a relative, such as a spouse, parent of a surviving minor child, or an adult child. In the event that the deceased died without designating a representative, the court may step in and appoint one.
Placing a Value on Pain and Suffering
The process for determining the value for pecuniary losses is more black and white than placing a value of grief, sorrow or mental suffering. Often little value is placed on the three by insurance companies. The plaintiff and his or her wrongful death lawyer must perform due diligence in proving grief, sorrow or mental suffering is there is no substantial evidence. Therefore, damages awarded for pecuniary losses could be higher than those awarded for grief, sorrow and mental suffering are. The jury will be given the responsibility of determining what should be considered fair and just compensation.
Statute of Limitations
A wrongful death lawsuit must be filed within one year of the deceased’s death. However, for wrongful deaths that are part of a personal injury case, the lawsuit must be filed within two years of the date of the accident. A wrongful death attorney can advise what time limit is applicable because failure to file during the prescribed time could lead to the court refusing to hear the case.