When people believe that the passing of their loved one could have been prevented if not for someone else’s negligence, they frequently turn to a wrongful death attorney for guidance.
Coping with the loss of a loved one is already a deeply painful process, but the thought that it could have been avoided can make it even harder to move forward. In addition to the emotional burden, surviving spouses or relatives may also find themselves grappling with medical bills, funeral expenses, and a lack of financial support
Do You Need an Illinois Wrongful Death Attorney?
In the event that we uncover evidence suggesting negligence was involved in your loved one’s passing, we can help you initiate a wrongful death lawsuit against the responsible party.
Although some wrongful death claims involve intentional or criminal acts, a wrongful death case differs from criminal proceedings, such as murder or manslaughter trials. Unlike criminal cases, the primary goal of wrongful death suits is not to punish the defendant but to seek relief for the plaintiff (in this case, the decedent’s relatives or heirs).
These lawsuits primarily focus on seeking financial compensation from the defendant or, in many instances, the defendant’s insurance company. By pursuing civil action, these claims offer recourse to the affected parties without imposing criminal penalties.
Because civil suits have a lower burden of proof than criminal cases, it’s possible to sue someone for wrongful death, even if they were not charged with a crime or were not found guilty. For people who are frustrated by the lack of criminal charges or jail time in their loved one’s case, it can provide another means to seek justice.
Furthermore, civil suits often assist surviving family members in covering final expenses and lingering medical bills. If the deceased person was the primary earner in the family, their spouse and children may also need help with regular living expenses.
The burden of worrying about rent or putting food on the table is the last thing you and your family need while working through your grief.
Can Anyone File a Wrongful Death Claim After a Family Member’s Death?
Not in the state of Illinois. Under state law, only the personal representative or executor of a deceased person’s estate can file a wrongful death claim.
However, if the claim is successful, the award will go to the decedent’s surviving spouse or other heirs.
What if the decedent passed without a will? This is not uncommon, especially in situations involving wrongful deaths.
Because wrongful deaths tend to be unexpected, they often affect younger people who anticipate having more time to set up their estate planning. When a person dies intestate, or without a will, the court can appoint one.
This person is often a relative but doesn’t have to be. Sometimes, an attorney, accountant, or family friend may be appointed to the role.
If you would like to be the personal representative for a loved one’s estate, your attorney can request the court appoint you. As long as you are over the age of 18, of sound mind, and have no felony convictions, there is a good chance the court will approve your request.
In some cases, clients tell us they aren’t sure who the personal representative is or if the estate has even entered probate. If the deceased’s estate was worth less than $100,000 and did not contain any real estate, probate is not required, and heirs can claim an inheritance with an affidavit.
However, you can still go through probate if you have grounds for a wrongful death suit. Your attorney can also search court records to determine if a probate case has been opened already for the decedent.
What Is the Difference Between an Accident and a Wrongful Death in Illinois?
Many wrongful deaths are classified by a medical examiner as accidents. A death can be accidental while still resulting from a negligent act.
Negligence indicates a situation where another party – a person or an entity like a business – fails to take reasonable care to prevent accidents that could lead to harm.
There are several components of proving negligence that we will consider when reviewing your loved one’s death:
The Defendant Owed a Duty of Care
In the context of a wrongful death case, the defendant would be the party responsible for the wrongful death. Keep in mind that this may not be who you expect it to be.
For instance, you might think that a reckless driver caused a car accident, but we may investigate and find that one of the vehicles malfunctioned due to a defective component. In this situation, the defendant could be the car or component manufacturer rather than the other driver.
Defining “duty of care” depends on the situation. A driver has a duty of care to operate their car safely and avoid behavior that might cause a dangerous accident.
A car company has a duty to make reasonably safe vehicles. A property owner has a duty of care to keep the property relatively safe for guests. In other circumstances, the duty may be defined differently.
The Duty of Care Was Breached
In order to establish that the defendant failed in their duty of care, we will need to present compelling evidence. For instance, consider a scenario where a tragic head-on collision resulted from another driver’s reckless act of driving while under the influence.
While this may appear straightforward at first glance, in the context of a wrongful death case, it will require a meticulous examination of various evidence sources.
These could include witness testimonies, available video footage, data from black boxes (commonly found in modern cars as event data recorders or EDRs), and any pertinent records or testimony related to the defendant’s intoxication, such as citations, arrest records, and blood alcohol level results.
In many cases, the defendant or their insurance carrier will try to refute the evidence that the defendant breached their duty of care. Illinois uses modified comparative fault law for civil cases, which means fault can be divided between parties.
Even if the other driver was mostly responsible for the accident, the insurance company could reduce their payout by the amount of liability they shift onto the victim. So, if they say the decedent was 20 percent at fault, they can reduce the damages by 20 percent.
Let’s return to our example about the intoxicated driver causing a head-on collision. Not surprisingly, the defendant’s attorney might claim that, intoxicated or not, the defendant wasn’t solely responsible for the accident because the decedent made a driving error, too.
In some cases, they may try to attack the evidence of the defendant’s blood alcohol levels by claiming the police didn’t follow proper evidence collection or handling procedures.
We understand that hearing these claims can be very upsetting for the deceased person’s family members, and we will do our best to refute them and show how the defendant failed in their duty of care.
This Breached Duty of Care Caused the Death
The final step is sometimes the most difficult. We have to show that the defendant’s breached duty of care is the cause of the decedent’s death.
For example, we might work to demonstrate that the deceased person would not have experienced a fatal injury if the defendant didn’t crash into their vehicle at 70 MPH. To do this, we will use medical records, expert testimony, witness testimony, and other available evidence.
Does the Defendant Have to Be Found Guilty in Criminal Court First?
No. We could certainly use a conviction as evidence in a civil case, but we can still proceed without one if we have other evidence that speaks to the three points listed above.
The reason is that criminal courts have a higher burden of proof than civil ones. We encounter many situations where the responsible party was acquitted in a criminal trial, or the prosecutor chose not to press charges because there simply wasn’t enough evidence to show the defendant was guilty beyond a reasonable doubt.
What Kinds of Accidents or Injuries May Lead to a Wrongful Death?
Any situation in which negligence leads to someone’s death might qualify as wrongful death, but here are some of the most common cases we see.
Motor Vehicle Accidents
These can include accidents involving cars, trucks, motorcycles, semi-trucks, RVs, buses, and other motor vehicles. We also see cases where a vehicle driver struck a pedestrian or bicyclist, causing their death.
In most of these cases, we will pursue a claim against the at-fault driver’s insurance company. However, if the driver has only the minimum required insurance in Illinois, it won’t cover all or even most of your damages.
Because of the loss of life, damages in a wrongful death case are often six or seven figures. In these cases, we will look for other ways to recover compensation, including suing the at-fault driver directly or using the decedent’s uninsured/underinsured motorist coverage.
ATV and Golf Cart Accidents
People sometimes think of these low-speed vehicles as being safer than cars, but they lack seatbelts and airbags. Even at lower speeds, an accident can have fatal consequences for a driver or passenger, especially if the low-speed vehicle is struck by a larger motor vehicle moving at high speed.
Defective Drugs or Medical Devices
Pharmaceuticals and medical devices have saved countless lives, but occasionally, a drug or device proves to have potentially fatal side effects even after receiving FDA approval. In the case of medical devices, rules that allow an expedited process for devices that are similar to those already on the market can mean approval with little oversight.
Additionally, a defective drug or device may not immediately cause symptoms of a severe problem. Some people tell us their loved ones had used a drug or device for years without issue before they suffered a sudden, unexplained death.
Because it can be challenging to determine if a medication or device caused a wrongful death, we recommend speaking with a lawyer if you have any concerns about a defective pharmaceutical item.
These cases involve fatal accidents or injuries that occur on another party’s property. Some are related to slip/trip and fall situations, but many of these deaths are caused by criminal acts.
A premises liability lawsuit against the perpetrator may not be productive if they have few or no assets we can seize. However, if the property owner’s negligence put the decedent at risk, we may have grounds for a civil suit against them.
One example would be if a customer dies during a gas station robbery. We might investigate and learn that the gas station had been robbed three times previously, and the owners made no effort to improve security – they didn’t add security cameras, a silent alarm, a security system, or even better lighting.
In a case like this, the gas station’s owner may have negligently put their customers at risk.
In 2021, there were 5,190 fatal work injuries in the US, an increase over 2020. While many of these deaths occur in high-risk fields like construction, roofing, or delivery driving, death on the job can occur in almost any profession.
If your loved one died while working as a W2 employee, you have a right to seek death benefits through the workers’ compensation system. However, sometimes, the insurance carrier may fight your claim.
If you’re struggling to obtain death benefits, please contact a wrongful death lawyer immediately. We can assist you in fighting a claim denial, and at the same time, we will review your case to determine if you have grounds for a civil suit against a third party
Get Help From Our Illinois Wrongful Death Law Firm
If you’re struggling with thoughts of whether your loved one’s passing could have been avoided, finding answers might be possible with the help of a wrongful death attorney.
Please contact The Fakhouri Firm Accident and Injury Lawyers today for a complimentary and discreet consultation on this sensitive matter. We’ll review your case, determine if you might have a wrongful death claim, and explain your options for recovering damages.
Rest assured, your call will remain confidential, and there’s no obligation. Call us today at (312) 999-9990.