What Happens If A Plaintiff Dies During Their Personal Injury Case?

At John J. Malm & Associates, we understand how overwhelming it can be for families when a loved one dies during the course of a pending personal injury claim. The grief of losing someone is compounded by the uncertainty of what will happen to their case. Thankfully, Illinois law provides a pathway to ensure the decedent’s rights are upheld, allowing their family to pursue the compensation the deceased would have been entitled to had they survived.

This process involves opening an estate and bringing a survival claim for damages, such as pain and suffering, medical expenses, and lost wages. However, it’s important to note that even when the law allows a survival claim to proceed, practical challenges—such as disputed liability or the absence of key testimony—can impact the case.

Illinois Survival Act: Protecting the Rights of the Deceased

The Illinois Survival Act (755 ILCS 5/27-6) ensures that a decedent’s estate can continue a personal injury claim that was pending at the time of the plaintiff’s death. Survival actions differ from wrongful death claims, which focus on compensating surviving family members for their own losses. Instead, survival actions recover damages for the harm the deceased suffered during their lifetime.

Damages Recoverable Under the Illinois Survival Act Include:

Pain and Suffering: Compensation for the physical and emotional suffering endured between the time of the injury and death.
Medical Expenses: Reimbursement for hospital bills, treatments, medications, and other healthcare costs.
Lost Wages: Recovery for income the deceased was unable to earn while recovering from their injuries.
Other Economic Damages: Compensation for injury-related costs, such as transportation to medical appointments.

“Survival claims allow families to ensure their loved one’s story is heard and justice is sought for the harm they endured,” says John J. Malm, Naperville personal injury lawyer. “But it’s equally important to recognize the potential challenges, especially in cases where the decedent was the sole witness to their accident or injury.”

What Happens When a Plaintiff Dies Before Their Case Resolves?

When a plaintiff dies during litigation or settlement negotiations, their personal injury claim does not automatically end. Instead, the following steps are typically taken:

1. Opening an Estate

To pursue a survival claim, a personal representative must be appointed to act on behalf of the deceased’s estate. This process begins by opening the estate in probate court.

Action Taken:
A family member or another qualified individual petitions the court to establish the estate and appoint a representative. Without this step, the survival action cannot proceed.

2. Amending the Claim

Once the estate is established, the pending personal injury lawsuit is amended to include a survival claim under the Illinois Survival Act and the representative of the estate is substituted into the lawsuit.

Action Taken:
The survival claim can only seek damages the deceased incurred before their death, including pain and suffering, medical expenses, and lost wages.

3. Addressing Liability Issues

In cases where liability is disputed, the plaintiff’s death may complicate the case—especially if they were the only witness to critical facts. For example:

A Fall-Down Case: If the deceased plaintiff was the only person who saw or experienced the hazardous condition (such as a wet floor or uneven pavement) that caused their fall, it may be difficult to establish liability without their testimony.
Other Examples: In disputes involving product defects or a car accident, the absence of the plaintiff’s firsthand account may weaken the case, even if it can proceed procedurally.
Potential Solution:
In some cases, other evidence (such as eyewitness testimony, surveillance footage, or documentation of hazards) may help fill in the gaps. However, the absence of the plaintiff’s testimony often remains a significant challenge.

4. Pursuing a Resolution

Once liability is addressed, the survival action continues through settlement negotiations or trial. If successful, damages are awarded to the estate and distributed according to the decedent’s will or state intestacy laws.

Case Example: A Challenging Fall-Down Claim

Consider the following example of how a survival claim might proceed when liability is in question.

The Scenario:

A 65-year-old individual, Mary, suffers a fall in a grocery store, sustaining severe injuries. Mary alleges that her fall was caused by a wet floor that the store failed to address. She files a personal injury claim seeking damages for her pain, medical bills, and lost wages. Unfortunately, before her deposition can be taken, Mary passes away from unrelated causes.

The Challenge:

After Mary’s death, the store denies liability, arguing that there is no evidence of a wet floor or negligence. Mary was the only witness to her fall, making it difficult to prove liability without her testimony.

The Steps Taken:

Opening the Estate:
Mary’s family petitions the court to open her estate and appoint a personal representative to continue the case.
Gathering Supporting Evidence:
To address the absence of Mary’s testimony, the personal representative’s legal team compiles other evidence, such as:
- Maintenance logs showing the store failed to follow its cleaning schedule.
- Surveillance footage showing employees walking past the area without addressing any hazard.
- Statements from other shoppers who noticed the floor was slippery near the time of the fall.
Negotiating a Settlement:
Using this evidence, the legal team demonstrates that the store failed to maintain a safe environment, persuading the insurer to settle the claim.

The Outcome:

Despite the challenges, the survival action results in a settlement that provides compensation for Mary’s medical expenses, lost wages, and pain and suffering, which are distributed to her beneficiaries through her estate.

Key Points for Families in Illinois If a Plaintiff Dies During Their Case

If your loved one has passed away with a pending personal injury claim, here’s what you need to know:

Procedural Pathways Exist: Survival claims under the Illinois Survival Act allow the decedent’s damages to be pursued even after their death.
Practical Challenges May Arise: Cases involving disputed liability, particularly where the decedent was the only witness to the incident, can be more difficult to prove. Evidence beyond the plaintiff’s testimony is often necessary to move the case forward.
Act Quickly: Survival claims must be pursued within the statute of limitations for the original personal injury case. Delays in opening the estate or amending the claim can jeopardize the case.

How John J. Malm & Associates Can Help With A Survival Act Claim

At John J. Malm & Associates, we are committed to guiding families through the complexities of survival claims with compassion and expertise. Our approach includes:

Opening the Estate: We handle all the necessary probate filings to establish the estate and appoint a personal representative.
Building the Case: We work diligently to gather evidence that supports liability and demonstrates the damages the decedent endured.
Addressing Challenges: We anticipate and tackle issues that may arise when the plaintiff is no longer able to provide testimony.
Maximizing Compensation: We seek all available damages under the Illinois Survival Act, ensuring the family receives the compensation their loved one was entitled to.

Contact the Acclaimed Illinois Personal Injury Lawyers at John J. Malm & Associates

Survival claims provide a vital pathway for ensuring justice when a plaintiff dies before their personal injury case is resolved. In Illinois, the law allows families to pursue compensation for the decedent’s pain, suffering, and financial losses. However, practical challenges—such as disputed liability or the absence of the plaintiff’s testimony—can complicate the process.

“Every survival case is unique, and our goal is to ensure that no challenge prevents a family from seeking justice for their loved one,” says Naperville accident attorney, John J. Malm. “We are committed to honoring the decedent’s rights and achieving the best possible outcome for their family.”

If your loved one died after an accident, contact John J. Malm & Associates for a free consultation. With over 90 years of combined experience and offices in Naperville and St. Charles, our top-rated Illinois injury lawyers are here to help you navigate this difficult process. Call us today for a consultation.