Illinois Wrongful Death FAQ

Common Questions About Wrongful Death and Fatal Accident Claims

At John J. Malm & Associates, we understand the profound grief and financial strain that follows the loss of a loved one due to someone else’s negligence or misconduct. Our top-rated Illinois wrongful death law firm, with offices in Naperville and St. Charles, is dedicated to providing compassionate and experienced legal representation to families in their time of need. With over 85 years of combined litigation experience, our team, led by John J. Malm’s 30 years of expertise, will guide you through every step of the legal process to help you seek justice and compensation.

“At John J. Malm & Associates, we understand the enormous responsibility that comes with representing a family who has lost a loved one. While no amount of money can truly compensate for the loss, we take this responsibility seriously, offering compassionate guidance while fiercely advocating for the justice and compensation our clients deserve.” – John J. Malm, Illinois wrongful death attorney.

Below are frequently asked questions about wrongful death claims in Illinois. This guide is designed to help families understand their legal options and rights.

1. What is a wrongful death claim in Illinois?

A wrongful death claim is a legal action that can be brought when someone dies due to the negligence or intentional actions of another person or entity. In Illinois, the Wrongful Death Act (740 ILCS 180/) allows family members to pursue compensation for the emotional and financial losses they suffer as a result of their loved one’s death. Often, family members are left without the financial support they relied on from the deceased, making it crucial to seek compensation for these losses. Wrongful death claims can arise from a variety of incidents, including:

• Car accidents: These are the leading cause of wrongful death claims. Negligent driving behaviors, such as speeding, distracted driving, and driving under the influence, frequently result in fatal crashes. According to the Illinois Department of Transportation (IDOT), over 1,200 fatalities occurred in motor vehicle accidents in 2022 alone.
• Medical malpractice: Deaths caused by medical errors, such as misdiagnosis, delayed treatment, or surgical mistakes, can result in wrongful death claims. Studies suggest that medical errors are one of the leading causes of preventable deaths in the U.S.
• Workplace accidents: Especially common in construction, manufacturing, and industrial settings, workplace fatalities often occur due to falls, equipment failures, or unsafe working conditions. The Occupational Safety and Health Administration (OSHA) reports that construction accidents, in particular, are a frequent cause of worker deaths.
• Nursing home abuse or neglect: Elderly residents in nursing homes are particularly vulnerable to neglect, including improper care, failure to monitor, or untreated injuries or illnesses, which can lead to fatal outcomes. Families can file wrongful death claims against the facility or caregivers when negligence leads to the death of a loved one.
• Defective products: Product liability claims arise when a dangerous or defective product causes fatal injuries. Common examples include defective vehicles, faulty medical devices, or unsafe household products. Manufacturers and distributors can be held accountable when their products cause wrongful deaths.

According to the National Safety Council (NSC), over 170,000 preventable injury-related deaths occur each year in the U.S., many of which involve situations that could give rise to a wrongful death claim. In Illinois, motor vehicle accidents remain a leading cause of these claims.

2. Who can file a wrongful death claim in Illinois?

Under Illinois law, only certain individuals are eligible to file a wrongful death claim. The claim must be filed by a special representative of the deceased person’s estate. The court appoints this representative, often the executor named in the deceased’s will, or, if there is no will, a family member may be appointed by the court to act in this capacity. The Wrongful Death Act (740 ILCS 180/2) provides this special representative with the authority to investigate the circumstances of the death, file a lawsuit, and negotiate or settle claims on behalf of the deceased’s estate.

Damages recovered from the wrongful death suit are distributed to the surviving spouse and next of kin, such as children or parents, based on the level of financial and emotional dependency each had on the deceased.

3. What types of damages can be recovered in a wrongful death claim?

A wrongful death lawsuit helps surviving family members recover several types of damages, including:

• Economic losses: Medical bills, funeral expenses, and loss of financial contributions.
• Non-economic losses: Compensation for emotional pain, suffering, loss of companionship, and loss of guidance.
• Punitive damages: In cases of gross negligence or intentional misconduct, punitive damages may be awarded to punish the wrongdoer and deter future similar conduct.

Damages are calculated based on the Illinois Pattern Jury Instructions, which provides guidance on assessing both financial and non-financial losses.

4. How long do I have to file a wrongful death claim in Illinois?

In Illinois, the statute of limitations for filing a wrongful death lawsuit is generally two years from the date of the person’s death. Failing to file within this time frame can result in losing the right to pursue compensation. However, there are exceptions:

• Medical malpractice wrongful death claims may have different deadlines.
• Government claims may have shorter filing periods.

It is critical to consult with an experienced Illinois wrongful death attorney as soon as possible to ensure that you do not miss any deadlines.

5. What types of accidents and injuries commonly result in wrongful death claims?

Several types of injuries often result in fatalities, leading to wrongful death claims in Illinois:

• Motor vehicle accidents: These are the leading cause of wrongful death claims, accounting for thousands of deaths annually. In Illinois, motor vehicle fatalities reached over 1,200 in 2022, according to the Illinois Department of Transportation (IDOT).
• Workplace accidents: Particularly in industries like construction and manufacturing, where machinery-related injuries and falls are common. The Occupational Safety and Health Administration (OSHA) reports that workplace fatalities frequently lead to wrongful death suits.
• Medical malpractice: Cases involving misdiagnosis, delayed treatment, or surgical errors are common causes of wrongful death. The Centers for Disease Control and Prevention (CDC) estimates that tens of thousands of deaths in the U.S. are caused by preventable medical errors each year.
• Nursing home neglect: Falls, infections, and failure to provide adequate care can result in death, leading to wrongful death claims.
• Product liability: Defective or dangerous products, such as faulty vehicles or unsafe medical devices, can lead to fatal accidents and wrongful death lawsuits.

6. How do I prove liability in a wrongful death case?

To prove liability in a wrongful death case, you must demonstrate that the defendant’s negligence or intentional actions directly caused your loved one’s death. This often involves gathering and presenting:

• Medical records: To show the extent and cause of the injuries.
• Police reports: Especially in motor vehicle accidents.
• Witness statements: To corroborate the events leading to the death.
• Expert testimony: From medical experts, accident reconstruction specialists, or others.

At John J. Malm & Associates, our DuPage County wrongful death lawyers thoroughly investigate every case, working with specialists to prove that the defendant’s actions caused the fatal injuries.

7. Can I file a wrongful death claim if my loved one was partially at fault?

Yes, under Illinois’s modified comparative negligence rule (735 ILCS 5/2-1116), you may still recover damages even if your loved one was partially at fault for the accident, as long as they were less than 50% responsible. If the deceased is found to be partially at fault, the compensation awarded will be reduced by their percentage of fault.

For example, if the court determines that the deceased was 20% at fault, the compensation awarded to the family will be reduced by 20%.

8. What is the difference between a wrongful death claim and a survival action?

A wrongful death claim seeks compensation for the losses suffered by the surviving family members. This includes damages such as loss of financial support, companionship, and emotional suffering.

A survival action (755 ILCS 5/27-6) is brought on behalf of the deceased’s estate for the damages the deceased could have claimed if they had survived. This includes compensation for pain and suffering the deceased endured before death, as well as medical expenses incurred prior to death. In Illinois, both a wrongful death claim and a survival action can be pursued simultaneously.

9. How is compensation distributed among surviving family members?

Under Illinois law, the damages recovered in a wrongful death claim are distributed to the surviving spouse and next of kin. The distribution is based on the level of financial and emotional dependency each family member had on the deceased. If a dispute arises over how damages should be distributed, the court may intervene to allocate the compensation fairly among the family members.

10. Can a wrongful death claim be settled out of court?

Yes, many wrongful death claims are resolved through settlements without going to trial. Settling a claim can save time, emotional distress, and legal costs for the family. However, wrongful death cases are often complicated, involving complex legal and factual issues, such as proving negligence and calculating damages for future losses. It is crucial to have an experienced Illinois wrongful death attorney navigate these complexities and negotiate the settlement to ensure the family receives fair compensation.

At John J. Malm & Associates, we are skilled negotiators who work to secure maximum settlements but are also prepared to take cases to trial when necessary to ensure justice for our clients.

11. How long does it take to resolve a wrongful death claim?

The timeline for resolving a wrongful death claim varies depending on the complexity of the case, whether liability is disputed, and whether the case is settled out of court or proceeds to trial. Many wrongful death claims can be resolved through settlement in several months, especially if the facts are straightforward and liability is clear. However, cases that require litigation will typically take much longer, often lasting a year or more. Litigation involves extensive legal procedures such as pre-trial motions, discovery, depositions, and potentially a trial, all of which can significantly extend the timeline.

Having an experienced attorney to guide you through this process is crucial. Wrongful death cases can be legally and emotionally complex, and an attorney will help ensure that your rights are protected, manage the legal deadlines, and build a strong case to pursue the maximum compensation. At John J. Malm & Associates, we work efficiently to resolve cases as quickly as possible while ensuring that we secure the best possible outcome for our clients. Whether through settlement or trial, our team is dedicated to pursuing justice for your family with expertise and care.

12. What should I look for in a wrongful death attorney?

When selecting a wrongful death attorney, consider:

• Experience: The attorney’s experience in handling wrongful death cases.
• Track record: A proven history of securing successful verdicts and settlements.
• Compassion: The attorney’s ability to understand the emotional toll of losing a loved one and guide families through the process with care.

At John J. Malm & Associates, our top-rated Illinois wrongful death attorneys combine compassion with legal excellence, offering personalized service and a commitment to justice for our clients.

Contact the Experienced Illinois Wrongful Death Attorneys at John J. Malm & Associates

John J. Malm & Associates has offices in both Naperville and St. Charles and serves clients throughout Illinois. If you or a loved one has suffered a wrongful death, contact our experienced Illinois personal injury legal team today. Our commitment to provide personalized service to your family, guided by our exceptional litigation experience, makes our team of Illinois wrongful attorneys the right choice for your important case. Call us for a free consultation, and let us help your family seek the compensation and justice you deserve.