Damages recoverable under the Illinois Wrongful Death Act, 740 ILCS 180/2, have been expanded to include emotional components that, until now, juries were instructed not to consider. House Bill 1798, signed into law on May 31, 2007, allows jurors to award emotional damages to a decedent's spouse or next of kin. The amendment, which applies to causes of action accruing on or after May 31, 2007, changes the Act to now read:

In every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.

This change to Illinois law eliminates a key argument for defense lawyers in wrongful death actions who were previously able to limit certain information and evidence presented to the jury simply because it was not admissible.

In addition to adding damages to the Act, the amendment also provides that any amount reduced from a contributorily negligent beneficiary's shares of damages should be distributed to the other beneficiaries in proportion to their respective degrees of dependency. Prior to the amendment, reductions based on contributory fault were not paid to anyone. Under the new law, a dependent's award is based on the "degree of dependency," which will be determined at a hearing before the trial judge. Lastly, the amendment deletes language regarding limitations on the amount of damages for deaths occurring in 1967 or before. The Act originally limited the amounts that juries could award a plaintiff for "pecuniary injuries" to $5,000. Through the years, the Illinois legislature continued to increase the amount recoverable and, in 1967, did away with any limitation on recovery for pecuniary damages. However, juries remained limited statutorily on the amount they could award if the decedent passed away prior to 1967. House Bill 1798 eliminates this limitation entirely.

Expanding the Act

The Act, enacted in 1853, created a right of action for surviving next of kin to recover damages resulting from decedent's death. ILL. REV. STAT. ch. 70, §§ 1-2.2. Traditionally, the Act only allowed recovery for pecuniary damages, precluding claimants from recovering for their bereavement. The Act reflected the social conditions of the nineteenth century when children were valued for their capacity to contribute to the family income. Primarily a farming society, Illinois followed the "pecuniary loss rule" that wrongful death was measured by financial contributions. Wrongful death acts were created to compensate for a decedent's economic value rather than emotional injury.

Almost a century after the Act became law the Illinois Supreme Court defined a pecuniary injury to be an injury capable of being measured by some standard. Its purpose was to differentiate between quantifiable losses, such as loss of income, and those indeterminable losses arising from the society and companionship shared with the decedent. The Court reasoned that no pecuniary value could be assigned to loss of society and companionship. See, e.g., Howlett v. Doglio, 402 Ill. 311, 83 N.E.2d 708 (1949). Despite this clarification, no standard was devised by which the pecuniary loss could be precisely determined. Accordingly, the jury was left to calculate the damages with reference to a reasonable expectation of benefit from the continuance of life. See, e.g., Ritthaler v. City of Chicago, 304 Ill. App. 151, 26 N.E.2d 150 (1st Dist. 1940).

Notwithstanding the apparent narrow limitations the legislature implemented with regard to damages recoverable under the Act, Illinois courts consistently interpreted "pecuniary injury" rather broadly. For example, a child has long been able to recover damages for loss of instruction and moral, physical and intellectual training as "pecuniary injuries." See Goddard v. Enzler, 222 Ill. 462, 78 N.E. 805 (1906). This compensation was not limited to the child's minority and included the reasonable expectation of future benefits from the father during the child's adult life. See Allendorf v. Elgin, J. & E. Ry., 8 Ill. 2d 164, 133 N.E.2d 288 (1956). Even though courts broadened the scope of a "pecuniary injury," the Illinois legislature neglected to amend the pecuniary injury limitation. Illinois continued to adhere to the pecuniary loss rule that a person's value is measured by financial contributions.

In the early 1980s, however, the Illinois Supreme Court recognized certain non-economic damages that a claimant could recover under the Act, and included these damages in the pecuniary injury definition. In one landmark case, Elliott v. Willis, 92 Ill. 2d 530, 442 N.E.2d 163 (1982), plaintiff asked the trial court to instruct the jury that, in assessing damages, it "consider the reasonable value of the society, companionship and conjugal relationship that [plaintiff ] had with her husband and which she had been deprived of because of his death." Id. at 534. On review, the Illinois Supreme Court considered whether loss of consortium is compensable as a pecuniary injury under the Act. The court relied on its previous decisions in both Hall v. Gillins, 13 Ill. 2d 26, 147 N.E.2d 352 (1958) and Knierium v. Izzo, 22 Ill. 2d 73, 174 N.E.2d 157 (1961), where it reasoned that the remedies sought were not significantly different from the statutory remedy available under the Act. In Hall, a child and widow brought a common law action alleging deprivation of the support, companionship, guidance, advice and affection of the father and husband. Similarly, in Knierim, a widow brought an action for loss of consortium resulting from the death of her husband. The court reiterated its words in Hall to address the loss of consortium issue: "'[t]he term 'pecuniary injuries' has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case.'" Knierim, 22 Ill. 2d 73 at 82 (internal citation omitted).

In holding that loss of consortium was compensable as a pecuniary injury under the Act, the Elliott court reasoned that "[s]ince we have said that the felicity and care of a father are capable of evaluation as 'pecuniary injuries' under [the Act], we are compelled to conclude that the companionship and conjugal relationship of a spouse are equally compensable as 'pecuniary injuries.'" Elliott, 92 Ill. 2d at 538. The court further noted that as a decedent's professional worth in terms of future earnings can be measured with precision and particularity, so too can damages for loss of a husband's society, companionship and sexual relations be measured. Additionally, the court acknowledged that "[a]ll of the elements that comprise what is considered to be loss of consortium may not be the most tangible items, but a jury is capable of putting a monetary worth on them." Id. at 540. In reaching this conclusion, the court stated that "[t]he purpose of [the Act] is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent's death [and it] is intended to provide the surviving spouse the benefits that would have been received from the continued life of the decedent." Id.

Following its decision in Elliott, the Illinois Supreme Court continued to expand the scope of pecuniary injury to encompass non-monetary losses. In Bullard v. Barnes, 102 Ill. 2d 505, 468 N.E.2d 1228 (1984), the court held that parents are entitled to a presumption of pecuniary injury from the loss of a deceased child's society and companionship in a wrongful death action.1 The antiquated presumption of loss of earnings was replaced with a presumption of pecuniary injury based on the loss of the child's society. The court noted that "the presumption that parents derive significant financial benefits from their children bears little, if any, resemblance to modern family life . . . ." Id. at 516. Although the presumption of loss of earnings no longer applied, the court stated that recovery could be obtained where it was proven that the child earned income used to support the family. Id. at 517. Furthermore, the court stated that the loss of a child is distinguishable from the loss of a spouse or parent in that neither children nor spouses bear the same heavy financial responsibility for either their parents or spouse that a parent automatically assumes upon the birth of a child. Id. at 517-18. Therefore, in computing damages, the court held "that for a wrongful death verdict to accurately reflect the parents' pecuniary injury, juries must be instructed not only to assign a dollar value to the loss of the child's society, but also to arrive at a figure, based on the evidence presented to them, which represents expenditures the parents would have been likely to incur had the child lived." Id. at 518. The court instructed that "[j]urors should be directed to deduct these projected child-rearing expenses from any award for loss of society and any proved loss of income." Id. The holdings reached in Elliott and Bullard gave jurors greater responsibility to consider a family member's loss of society. Still, recovery for grief, sorrow or mental anguish remained unrecoverable.

Shortly after the Illinois Supreme Court's decisions in Elliott and Bullard, the Third District pushed the traditional boundaries further and reasoned that if a parent may maintain an action for the loss of society of an adult child, then conversely, an adult child should be allowed to maintain an action for the loss of society of a parent. See Keeling v. Keeling, 133 Ill. App. 3d 226, 478 N.E.2d 871 (3rd Dist. 1985). The Illinois Supreme Court also broadened the class of potential plaintiffs who could recover under the Act by holding that a proven loss of a sibling's society is a pecuniary injury for which siblings may recover under the wrongful death statute. See In re Estate of Finley, 151 Ill. 2d 95, 601 N.E.2d 699 (1992). Interestingly, the Court noted that while the First and Second Districts allowed siblings such an opportunity, the Fourth District disagreed with this position and barred all siblings from the opportunity of proving loss of society as a pecuniary injury. Id. at 103. The Seventh Circuit Court of Appeals, however, agreed with the Fourth District and held that adult siblings were not permitted to recover for the loss of another adult sibling. See Moruzi v. McDonnell Douglas Corp., 771 F.2d 338 (7th Cir. 1985). Accordingly, the courts remain split on this issue and the Illinois Supreme Court has chosen not to review the decisions of the appellate courts. See Pruitt v. Jockisch, 228 Ill. App. 3d 295, 591 N.E.2d 942 (4th Dist. 1992), appeal denied, 146 Ill. 2d 651, 602 N.E.2d 475 (1992); see also Schmall v. Village of Addison, 171 Ill. App. 3d 344, 525 N.E.2d 258 (2nd Dist. 1988), appeal denied, 122 Ill. 2d 594, 530 N.E.2d 264 (1988).

While the courts have been willing to expand the scope of the "pecuniary injury" definition to include seemingly non-economic damages, they have not allowed recovery of punitive damages in wrongful death actions. See Gardner v. Geraghty, 98 Ill. App. 3d 10, 423 N.E.2d 1321 (1st Dist. 1981). Consistent with previous holdings, the most recent amendment to the Act did not expand the damages recoverable to allow for recovery of punitive damages. Regardless, the Act is not the exclusive remedy available to a plaintiff for tortious injuries resulting in death. Murphy v. Martin Oil Co., 56 Ill. 2d 423, 308 N.E.2d 583 (1974). Therefore, while not allowed in wrongful death cases, punitive damages may be recoverable under another theory of liability in the same cause of action.

Amendment Spurs Debate on Future Wrongful Death Actions

The amendment to the Act ends a delicate balancing act played between the judge, plaintiff and defense lawyer in terms of what evidence is allowed or not allowed in measuring loss of society. Plaintiff attorneys no doubt welcome the change as it allows them the opportunity to present evidence specifically on the grief, sorrow and mental suffering of a parent, spouse or other family member. These emotional aspects associated with the death of a loved one now have a place in the courtroom. The amendment allows jurors, who have until now been instructed to disregard certain emotional factors, to base their damages award on plain sympathy for the plaintiff. In effect, proponents believe that the new law allows a jury to fairly assess the true loss sustained by family members in wrongful death actions.

Any confusion jurors may have had in the past in terms of what exactly loss of society includes may now be avoided. Jurors no longer have to distinguish love, compassion and affection lost as a result of the death from the survivor's grief and sorrow over the death. Furthermore, plaintiff attorneys will be given more freedom to present evidence on how the death has affected the survivor. Attorneys will no longer walk a fine line when presenting evidence of loss of society. While some trial judges have previously allowed a certain level of evidence of grief and sorrow, the amendment allows plaintiffs to be more direct in presenting emotional arguments regarding the claimant's loss of society.

Playing on the sympathies of jurors could also affect the size of damage awards in wrongful death cases. Plaintiff attorneys can consider introducing expert testimony to develop the grief, sorrow, sadness and depression in an effort to help bolster the award. Contrary to this expected benefit, some plaintiff attorneys argue that the revised law could see little change in the damage awards as juries' most likely considered grief, notwithstanding the jury instruction, when compensating for the death of a loved one.

Wrongful death cases involving the elderly or young children could see the greatest increase in damage awards. When dealing with the elderly or very young, damages are generally low as there is little medical expense and no loss of income or support. As a result, it was not always economically feasible to bring a wrongful death cause of action. The largest component of damages may very well be the grief, sorrow and mental anguish the family suffers as a result of the death. Therefore, the amendment to the Act is likely to increase the class of plaintiffs seeking recovery.

While the amendment is advantageous to a plaintiff's ability to present evidence on loss of society, defense attorneys are feeling less protection on the issue of damages. As modifications to compensable damages under the Act continued throughout the 1980s and 1990s, the results proved unfavorable for the medical industry.2 Rising verdicts in personal injury and medical malpractice cases, along with a decline in the number of physicians practicing in some areas of Illinois, led to tort reform in 2005. Public Act 94-677 capped the amount a plaintiff could recover for non-economic damages to $500,000 per doctor and $1 million per hospital. Despite the recent amendment to the Act, the cap on noneconomic damages remains in place.

Defense lawyers are concerned that the damages now recoverable under the Act will lead down the "slippery slope." Allowing juries to award damages for the grief, sorrow and mental anguish of a surviving spouse and/or next of kin could drastically increase the amounts awarded in Illinois wrongful death verdicts. Additionally, allowing the jury to consider the survivor's grief or mental anguish will likely divert the jury's attention from the legal issues and cause them to focus on the sympathy aspects of the case when determining the amount to award. Therefore, the jury may be more likely to award damages based on the sympathy and emotion elicited from the plaintiff instead of listening to the law and basing their decision on the evidence and legal aspects of the case. Furthermore, the new amendment seemingly contradicts the purpose of the 2005 tort reform legislation.

In the coming months, lawyers, physicians and insurance providers will be keeping a close watch on a recent constitutional challenge to the 2005 damage cap. The 2006 case, LeBron v. Gottlieb Memorial Hospital, et al. (Cook Co: 06 L 12109, Nov. 13, 2007), is the first challenge to the state law cap on non-economic damages in medical malpractice verdicts. Cook County Circuit Court Judge Diane Larsen ruled that limiting pain and suffering awards, the non-economic damages for medical malpractice, is unconstitutional. On November 13, 2007, Judge Larsen ruled that Public Act 94-677 violates the Separation of Powers Clause of the Illinois Constitution as an improper exercise of legislative power.

Judge Larsen based her ruling on Best v. Taylor Mach. Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997) where the Illinois Supreme Court overturned a compensatory caps law. In her opinion, Judge Larsen noted that the Court had determined that a cap on non-economic damages violates the separation of powers in the state Constitution and "disregards the jury's careful deliberative process in determining damages that will fairly compensate injured plaintiffs who have proven their causes of action." LeBron (quoting Best at 414). Furthermore, Judge Larsen stated:

In finding that the cap on non-economic damages 'unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of the law,' [the Illinois Supreme Court] expressly noted that 'the cap on damages is mandatory and operates wholly apart from the specific circumstances of a particular plaintiff's noneconomic injuries. Id.

The issue will now go to appeal in the Illinois Supreme Court which has struck down similar damage caps in the past. If the non-economic damage award cap is overturned, medical malpractice insurers will be vulnerable once again to excessive verdicts and settlements.3 Allowing juries to award damages for grief, sorrow and mental anguish may, in effect, contradict the very purpose of the 2005 tort reform legislation.

As the court noted in Elliott, the purpose of the Act was to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent's death, and to provide the surviving spouse with the benefits that would have been received from the continued life of the decedent. See Elliot, 92 Ill. 2d at 540. However, as the damages recoverable under the Act were expanded in Bullard to include loss of consortium, juries were forced to make their decisions by disregarding any consideration of the impact the death had on the survivors emotionally. It would seem that the emotional aspects of the death of a loved one went hand-in-hand with the claims for loss of society and/or consortium. With the new amendment, juries will consider grief and mental anguish as one element of damages and decide the value of the loss of society as a separate element. The question remains as to whether adding this new element will cause verdicts and/or settlements to skyrocket, or whether juries will split the award normally given when they were only able to consider the loss of society. The problem created by this amendment is that no parameters or guidelines have been set in place to determine the value or worth of an individual's grief or mental anguish. Accordingly, a jury is seemingly free to award monetary amounts based solely on the fact that the emotion or grief espoused by one plaintiff instilled more sympathy in the hearts of the jury than did another. Until such guidelines are put into place, the effect the revision may have on future verdicts will have to be measured on a case-by-case basis.

Both plaintiff and defense attorneys await the impact this new class of damages recoverable in wrongful death cases will have on future verdicts. Defense attorneys contend that the change will open the flood gates to allow verdicts to soar and plaintiffs to essentially escape recent caps on awards instituted to combat this very problem. Conversely, plaintiffs' attorneys welcome the change and juries' newfound ability to consider grief and sorrow felt to be evidence of loss of society. Plaintiffs' attorneys no longer have to tread lightly when presenting evidence of loss of society and consortium and, therefore, can elicit evidence of how the loss has affected the mental state of the plaintiff. Notwithstanding the fact that the judicial system has effectively defined "pecuniary injury" to include non-economic damages, the 2007 amendment to the Act is the first time the legislature expressly expanded the pecuniary damages limitation to allow for recovery of non-economic damages.4

Footnotes

1 Prior to the court's decision in Bullard, recovery for the loss of society of a child was not allowed in wrongful death actions. See Kaiserman v. Bright, 61 Ill.App.3d 67, 69-70, 377 N.E.2d 261, 263-64 (1st Dist. 1978); see also Trotter v. Moore, 113 Ill.App.3d 1011, 1016, 447 N.E.2d 1340, 1344 (2nd Dist. 1983).

2 Beginning in the 1980s, Illinois recognized damages under the Act for loss of society for spouses, parents, children and siblings. See e.g. In re Estate of Finley, 151 Ill. 2d 95 (1992) (a sibling may recover for the loss of society resulting from the death of another sibling); Seef v. Sutkus, 205 Ill.App.3d 312, 582 N.E.2d 606 (1st Dist. 1990) (a parent may recover for the loss of society resulting from the death of a stillborn child); In re Estate of Keeling, 133 Ill.App.3d 226 (1985) (a child may recover for the loss of society resulting from the death of a parent).

3 Of note, this past October a DuPage County jury awarded a record $12 million to plaintiff, a boy who suffered brain damage at birth. Of the $12 million, $1.5 million was for "non-economic" damages. The injury happened in 1999, before the Illinois law capping noneconomic damages was in effect.

4 Illinois now becomes the 24th state to allow recovery of damages for grief, sorrow and mental anguish in wrongful death cases. The other twenty-three states are Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Hawaii, Kansas, Louisiana, Maine, Maryland, Montana, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, Vermont, Virginia, Washington and West Virginia.

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