The loss of a loved one due to another person’s wrongful conduct is a tragic and devastating event, and fatal car accidents are unfortunately common throughout the nation. At Mike Agruss Law, we represent families whose loved ones have suffered a wrongful death in an accident to ensure that your rights are protected and seek justice and compensation for your losses. If you have lost a loved one due to a wrongful death, contact our attorneys today for a free consultation.
Wrongful death claims are made for the “exclusive benefit” of the victim’s next of kin and surviving spouse, and “next of kin” is defined by Illinois law as“those blood relatives of decedent in existence at decedent’s death who would take decedent’s property if decedent had died intestate” in order to limit wrongful death actions to surviving spouses and children. The claim may be filed by the victim’s “personal representative,” which may have been appointed in the victim’s will. If no personal representative was named in the will, a surviving loved one may petition the Probate Court in his/her jurisdiction to be appointed as such.
Establishing a case for wrongful death in an auto accident is similar to establishing other personal injury cases: there are four key elements needed to hold the at-fault party legally accountable. The first is duty: The defendant, be it an individual, business, or government agency, must have owed a legal duty of care to the deceased victim. In this case, the duty to drive safely and with reasonable caution on public roads applies to all drivers and motorists. The second is “breach,” meaning the defendant must have failed to uphold his/her legal duty of care to the deceased victim, such as by reckless, distracted, or intoxicated driving. The third is “causation,” meaning that the defendant’s breached duty of care, whether via action or inaction, must have been the direct (proximate) cause of the victim’s death which would not have occurred otherwise.
The fourth element is “damages,” which represents the damages, expenses, and losses you’ve sustained due to the loss of your loved one. In a lawsuit under the Wrongful Death Act, surviving loved ones may be entitled to “just and fair compensation” for their own monetary losses, which may include “money,” “goods,” and “services,” referring to what the deceased victim typically contributed to his/her family in the past and what he/she would have contributed in the future. This compensation also reflects the deceased victim’s age, health, and personal expenses, and can be specific to a survivor’s dependency. A child may be eligible for compensation for lost parental guidance, for example, while a spouse may be compensated for loss of consortium/companionship.
In a “survival lawsuit,” the victim’s estate may recover for the victim’s suffering between the time of injury and time of death, including medical expenses, lost wages, and conscious pain and suffering, and either the estate or individual surviving loved ones may file separate claims for compensation for funeral expenses.
Under the Illinois Wrongful Death Act, you have two (2) years from the date of your loved one’s passing to file a wrongful death claim on his/her behalf. There are also potential exceptions to this rule: the first is that a juvenile has two (2) years after reaching the age of majority (eighteen) to file; the second is the “discovery rule,” under which the surviving loved ones of a deceased victim of medical malpractice have two (2) years from the date that they “knew or reasonably should have known of” the injury, although the claim must still be filed within four (4) years of the date of the injury; and the third is for wrongful death claims against a government agency in Illinois, which should be filed within one (1) year and with respect to additional special-notice requirements.
Regarding comparative fault: if your loved one was partially at-fault for the accident which resulted in his/her wrongful death, compensation under Illinois law may still be possible, provided that the victim was not more than 50% at-fault. Compensation would then be reduced in proportion to the victim’s fault for the accident. In addition, compensation for the survivor may also be barred if he/she was more than 50% responsible for the accident; if the survivor’s fault was less than 50%, his/her compensation would also be reduced accordingly.
If you have lost a loved one in an accident due to another’s negligence, contact Mike Agruss Law today for a free consultation. We are a Chicago-based personal injury law firm representing the families of those who have lost a loved one due to wrongful death. We will handle your case quickly and advise you every step of the way, and we will not hesitate to go to trial for you. Remember: we are not paid attorneys’ fees unless we win your case. Our no-fee promise is that simple. There is no risk when you hire us – only the opportunity to seek justice.