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Illinois, like all states, has laws for wrongful death accident claims. This article discusses critical aspects of the Illinois wrongful death laws, including how wrongful death is proven. For questions about a wrongful death case, our wrongful death lawyer in Schaumburg at SJ Injury Law can help. 

Illinois Wrongful Death Definition

Under state law, wrongful death happens when someone dies because of another person’s ‘wrongful act, neglect, or default.’ A wrongful death lawsuit could be filed where the person who died could have brought a personal injury lawsuit if they had lived. Thus, you can think about a wrongful death claim as a variation of a personal injury lawsuit. The injured party cannot pursue their claim in court, so a family member has to step in and file the claim on their behalf.

Some states let the deceased’s family members file the claim. In Illinois, the claim must be filed by the estate’s personal or special representative. If the person who passed away died without a personal representative in their will, the court can name one. The personal representative must pursue the wrongful death lawsuit and handle other critical tasks related to the deceased’s estate.

What Must Be Proven In A Wrongful Death Claim?

Most wrongful death claims in Illinois are resolved outside of court. However, if you cannot reach a fair settlement with the defendant and the case goes to court, four elements must be proven:


First, you must prove that the defendant owed a duty of care to the deceased. A duty is typically owed to all foreseeable individuals who could be injured by the defendant’s failure to act as a reasonable person would in the same situation. Also, if the defendant’s conduct led to a zone of danger, they are liable for injuries in that zone. For instance, a driver owes a duty of care to other drivers to not violate traffic laws and drink and drive. If the driver got drunk and killed someone, they violated their duty of care.


After showing the defendant owed a duty to the person who died, you must establish that the defendant breached their duty. It is not always simple to prove how the breach occurred, but res ipsa loquitur allows the plaintiff to prove that the defendant breached their duty if you can prove the following:

  • The incident that caused the death is of the sort that does not happen unless there is a negligent act.
  • The incident that caused the death was because of something within the defendant’s control or dominion.
  • The defendant did not cause their own fatal injuries.


After showing duty and breach, you must show the link between the defendant’s actions or inactions and the death. First, you must show actual causation, which means the death would not have happened except for the wrongful act. Second, you have to show proximate causation. This means that the death was in the realm of possible harms that could have occurred because of the person’s negligent conduct.


Finally, you must prove that the defendant’s negligence led to damages for you in addition to the person’s death. Justice in a wrongful death lawsuit is represented by financial awards, offering evidence for your damages is vital. Damages that you could receive include:  

  • Economic: These include money for medical expenses, funeral bills, lost earnings, and lost future earning potential.
  • Non-economic: These are awarded for pain and suffering, emotional distress and trauma, and loss of companionship and consortium.  These damages may be hard to quantify, but the more evidence you show of how the death affected survivors, the higher value the case has.

What Damages Can Be Received In A Wrongful Death Claim?

If the wrongful death claim is successful, the court will provide damages to the survivors or estate. In Illinois, financial damages are provided to the surviving spouse and family according to their dependency level on the deceased person.

Damages in an Illinois wrongful death lawsuit are supposed to compensate the person’s family for the financial losses related to the death and non-economic damages. Some of the damages you could receive in the case are:

  • Loss of financial support that the person would have provided, including lost benefits and wages.
  • The person would have lost companionship, society, and intimate relationship with their spouse or domestic partner.
  • The deceased party would have given surviving children a loss of moral training, education, and instruction.
  • The family’s sorrow, grief, and mental suffering.

Statute Of Limitations For A Wrongful Death Lawsuit

A wrongful death lawsuit must be filed within a specific time. The statute for most wrongful death lawsuits in Illinois is two years from the date of death. However, if the person passed because of ‘violent intentional conduct,’ the claim must be filed within five years. Also, a wrongful death lawsuit may be filed one year after the criminal case (if any) is resolved if the person who caused the death was charged with one of these crimes:

  • Drug-induced homicide
  • Involuntary manslaughter
  • Reckless homicide
  • First or second-degree murder
  • Voluntary manslaughter of an unborn child

What If You Do Not Know Who To Sue?

Sometimes it is unclear who the correct defendant is in a wrongful death claim. This can happen when filing suit against a business; many corporate franchises and companies could use various names in public that are different from their corporate names.

If you sue the incorrect entity or person, and the statute of limitations lapses, you cannot amend the complaint to add the proper entity, even if you sued the incorrect entity incorrectly. To avoid this problem, speak to a wrongful death attorney as soon as possible. They can go over any relevant documents and investigate to find every defendant who could be liable for the person’s death. Suing the correct person or entity is critical to the success of your claim. 

How Do You Know If You Have A Wrongful Death Claim?

Before working with an attorney, you need to know if you have a possible wrongful death claim. To decide if you have a potential case, consider two questions:

  • Did your loved one die because of another individual’s negligent or intentional act?
  • Did you suffer emotional or financial damages resulting from the death?

If you can answer ‘yes’ to these questions, you could have a claim, and you should call a wrongful death attorney today. Your attorney will inform you of the types of evidence you will need to prove your claim. They also will tell you the potential damages you could receive in a settlement or verdict award. Before you contact an attorney, it can help to collect evidence, such as pictures, witness statements, and police reports. That way, the attorney will have a better idea of what happened.

How To Prove A Wrongful Death Claim

The success of your Illinois wrongful death claim depends on convincing evidence. Depending on the details of the accident and subsequent injuries, the following evidence could be critical to proving the claim:

Safety Records

Did your loved one pass away in a workplace accident? Your attorney can review the firm’s safety and training records. A review of these records could show that the company did not adhere to proper training and safety methods, contributing to the accident. This would establish negligence by proving that the company did not fully train employees. It also shows the employer owed your loved one a duty of care.

Video Footage

If available, videos and photos could be used to show the accident and how it happened. For example, a red-light video could show how the defendant ran a red light and hit your loved one in a crosswalk. Your attorney can usually obtain video footage as evidence, whether from a red-light camera or surveillance video from a nearby business.

Police Report

You can work with your attorney to obtain law enforcement’s report about the accident. The report should contain important accident details, including how it happened and, potentially, who was at fault. The report could also contain contact information for witnesses. This evidence could show your attorney how the accident occurred and what led to the person’s death.

Eyewitness Testimony

Witnesses also can prove a wrongful death occurred by describing what they saw and heard when the person passed away. They also may testify about how your loved one passed away, such as the severity of injuries they suffered.

Medical Records

Your attorney must show that the deceased’s injuries are related to the defendant’s negligence. This can be done with their medical records, which indicate the nature and extent of the deceased’s injuries.

Autopsy Report

This report could show in a medical malpractice case if a medical error caused the person’s death. The autopsy report could have critical information, such as body photos, a detailed examination of the body, factors that caused the death, and tissue sample descriptions.

Contact Our Wrongful Death Lawyer In Schaumburg

The loss may seem overwhelming if you lost a loved one recently because of someone’s negligence. You may be able to file a wrongful death lawsuit to obtain damages. Contact our wrongful death lawyer in Schaumburg at SJ Injury Law for help at (847) 434-3555.

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