Tag: wrongful death

Hello, this is Keith Shindler, back with another session of Facebook Live. Today, we’re joined by Jessica Wong-Barrera. The purpose of these Facebook Lives is to bring to the Facebook community useful information that’s going to help our viewers recover the maximum compensation when they’re injured as a result of someone’s negligence. Sometimes it could also be intentional, but generally, these injuries are the result of negligent conduct.

Today, we’re going to talk about something that was in the news maybe a month ago. What happened, sadly, was a seven-year-old girl was playing on her driveway very innocently. She was allegedly kidnapped by a person who was driving for one of the largest parcel delivery companies in the world. And then sadly, they found that little girl murdered. The question becomes can the family seek justice? If they come to me, I’m going to help them Claim Their Justice.

This is a criminal act of a third party and generally, the law is, and this law goes hundreds of years back, an employer is not responsible for the criminal acts of one of its employees. It could also be an independent contractor. So we’re going to explore a little bit of that today. Remember, if you have any questions that we can help you with regarding serious personal injury cases, reach out to us at 847-434-3555. You could also get us on the internet at ClaimYourJustice.com or reach us through Facebook here.

What is the theory of liability that you would assert on behalf of a client who is trying to hold an employer liable for the criminal act of one of its employees or independent contractors?

There are several theories, one of them could be negligent hiring, one of them can be negligent training, and another could be negligent supervision. These are all legal arguments that are designed to avoid the defenses that an employer would assert in saying “I’m not responsible for the criminal act”

What is negligent hiring?

Negligent hiring. Staying with this example, we see that the employer hired this person or agreed to otherwise contract with this person, and the employer failed to do a criminal background check. Had the employer done a criminal background check, they would have seen that this particular person, hypothetically, had two prior violent felony convictions, or was recently released from prison for a violent felony. We would argue it was negligent hiring in making that person an employee or independent contractor.

Society and I included, all want to give people who served their time a second chance, no problem with that. You have to balance that against the type of activity that that person is performing. So negligent hiring would be failing to do a background check. If you fail to do a background check, you can’t argue that it wasn’t foreseeable, that you didn’t think this person could commit another violent act.

A background check would have shown, hypothetically, that there were two prior violent felonies. If you’re going to hire that person, they may need a little more supervision than just letting them perform the services and duties and job description the same way someone else would with no criminal background. That would be negligent hiring.

Okay, Can you tell us about negligent supervision and negligent training?

Yes, negligent supervision would be that if you have a person that you want to give a chance to, as you should to a person who may have a criminal background, you should supervise that person, you should maybe do a little extra supervision. It could be that the employer has to install a camera in this particular case in the car, or you have to have the person work in a team of two that would otherwise normally be only a team of one doing the job.

You have to provide supervision. If you as an employer want to avoid liability for an accusation as serious as this, then you need to make sure you’re able to protect yourself from the foreseeability argument. In court I’ll say Claim Your Justice is representing this person that was injured by a criminal act of your employee, it was foreseeable what your employee did to my client, and you should have supervised it better, so it will be negligent supervision. What’s next?

Well as you know, this is a very, very sad story. We feel for the young girl’s family. You were talking about the employee and the independent contractor, I thought you said you could only try and hold the employer responsible if the person that committed the criminal act was an employee?

Okay, so we’re talking about the difference between employees and independent contractors. Another defense employers used to use regularly is that we’re only responsible for employees because we provide the tools, the hours, the place for employment, and many other variables.

However, the law has extended to independent contractors to say you need to make sure if you’re having an independent contractor work for you, you do the same type of training, supervision, and hiring checks that you would do if it was your employee.

It’s not going to be an escape hatch for the employer or the person who hired the independent contractor to avoid a theory of liability for the criminal act of a third party. Anything else on your list of questions you want to discuss y’all we have?

If someone else comes to us at CYJ with the same scenario, would we be able to help them?

Yes. That’s why we want to keep educating the Facebook community so that people are aware of their options. Don’t think you’re down and out without a case. Call us it doesn’t take long for me to analyze whether there’s a theory of liability to pursue, and you as the person who’s injured, don’t want to wait, call right away.

We hope you’ve enjoyed the information, and learned from some of the information provided today. Remember, you can reach me or Jessica at Claim Your Justice at 847-434-3555 or ClaimYourJustice.com. Have a nice rest of your week. Bye.

If you lost a loved one because of someone’s negligence, you know how devastating it is emotionally. Your loved one’s death also can wreak havoc on your finances and future. How will you pay the mortgage, car, and your child’s college education?

Fortunately, you have legal options if someone’s negligent action caused the death of someone close to you. You can file a wrongful death lawsuit in Illinois to receive compensation for your losses. Learn about wrongful death in Illinois below, then contact our Schaumburg wrongful death attorney for legal representation and assistance.

Are There Caps On Wrongful Death Damages In Illinois?

No. There are no caps for damages in Illinois for wrongful death. In 2005, the state of Illinois passed a law that limited noneconomic damages for medical malpractice lawsuits for wrongful death and personal injury. However, fortunately for the residents of Illinois, the law was overturned a few years later because the Illinois Supreme Court found it violated the state Constitution.

The Illinois Supreme Court found that decisions for damages on civil lawsuits should be made only by judges and juries. Today, there are no limits on wrongful death awards or personal injury lawsuits in Illinois.

What Happens When I File A Wrongful Death Lawsuit?

A wrongful death case begins with your attorney filing a wrongful death claim. This is accomplished by filing an insurance claim against the persons or companies responsible for the accident that caused the wrongful death.  Many times a lawsuit will be filed right away in order to preserve evidence as to how the accident happened.  If an insurance claim is filed first, the insurance provider will initiate an accident investigation.

Based on the outcome of the investigation, the insurance company may want more information or begin to discuss a financial settlement. They also may present you with a proposed settlement.

In this process, it is recommended to speak to a skilled Schaumburg wrongful death attorney as early as possible. Your attorney knows how to maximize the compensation you receive by accurately valuing your loved one’s future lost income, pain and suffering, and more. They also know how to attach value to your mental suffering, anguish, and loss of support and can prove it.

Most insurance companies offer a low settlement amount at first. However, you should be represented by an attorney during these negotiations because the insurance company will take you more seriously.

What Are The Most Common Wrongful Death Accidents In Illinois?

If you lost your loved one in any of the following Illinois accidents, you should consider filing a wrongful death lawsuit:

• Auto Accidents

Car and truck accidents in Illinois are the most common type of wrongful death action. This is because so many Illinoisans drive every day. Car accidents are the third-leading cause of death among all ages in Illinois. Whether your loved one was driving near Woodfield Mall, Wintrust Field, or elsewhere in Schaumburg, many severe and fatal car accidents happen daily in this community and across Illinois.

Driver’s negligence causes most Schaumburg car accidents. It could be speeding, reckless driving, running a stop light, or failure to yield. You could receive compensation for your losses if any of these are proven.

• Medical Malpractice

Did you lose a loved one in Schaumburg at a local hospital? Unfortunately, while most doctors at these facilities are skilled, they sometimes make medical errors. These errors  can happen if medical professionals cut corners, fail to follow standard medical procedures, or miss a diagnosis.

The most common medical malpractice cases are misdiagnosis and failure to diagnose. There also are surgical errors and medication mistakes that cause unnecessary deaths.

• Tractor-Trailer Accidents

Tractor-trailer accidents are in their own category of wrongful death actions because of their size and the violence of the collisions. In addition, big rigs are much more likely to cause fatalities than other vehicles.

The reasons truck accidents happen also are different. Many truck accidents happen because of driver fatigue, distracted driving, mechanical problems, aggressive driving, and oversized loads.

• Pedestrian Accidents

Pedestrian accidents often result in death because the person is unprotected when struck by the vehicle. Driver negligence causes most pedestrian accidents. However, the Illinois or Schaumburg local government may be liable if there was a problem with the road or lack of proper signs.

• Workplace Accidents

Occupations in Illinois with higher risk, such as construction and manual labor, have higher job-related fatalities. However, wrongful death can happen in an office, such as at a corporate center. Work-related accidents also occur when people are overworked and get in fatal accidents on the way home.

• Defective Products

The manufacturer, designer, or retailer could be liable if your loved one died because of a defective product. Product liability is the biggest reason companies spend a lot of time testing products over and over to ensure their safety. Common sources of defective product wrongful death lawsuits are pharmaceuticals, unsafe products, toxic foods, toys, and defective motor vehicles.

What Do You Have To Prove In A Wrongful Death Lawsuit?

To succeed in your wrongful death lawsuit, your Schaumburg wrongful death attorney must prove:

• Your loved one died.
• Another person’s negligence caused the death of your loved one.
• You suffered financial and emotional losses because of the death.

You have the best chance of receiving compensation by hiring a wrongful death attorney.

Compensation In Wrongful Death Lawsuits

No amount of money can bring your loved one back to life. However, a wrongful death lawsuit will help you Claim Your Justice and reduces the financial burdens of a sudden death. If you are successful with your lawsuit, you may be entitled to the following compensation:

• Medical bills
• Funeral and burial expenses
• Loss of inheritance
• Loss of guidance from a parent
• Loss of companionship of a spouse
• Mental suffering, sorrow, and grief of the surviving family
• Pain and suffering of the deceased

You may receive this compensation from a trial verdict or a wrongful death settlement before the trial.

Illinois Wrongful Death Statute Of Limitations

Another critical point to remember with wrongful death in Illinois is the statute of limitations. You have only two years from the date of death to file a lawsuit. It is vital to contact an attorney as soon as possible to have the case filed on time. If you miss the deadline, the court will dismiss your case.  However, there are rare exceptions.

Schaumburg, Illinois Wrongful Death FAQ

Some of the most common wrongful death questions we receive are below.

• Can I afford to hire a wrongful death attorney?

At Claim Your Justice, we do not think that a lack of money should prevent you from obtaining justice after losing your loved one to someone’s negligent act. Our Schaumburg wrongful death lawyers offer a free consultation. Also, we represent our clients on a contingency fee basis. You do not pay our fees unless we win your case.

• Who can file a wrongful death lawsuit in Illinois?

The surviving spouse, children, siblings, and parents can file the lawsuit. Your attorney will determine who can receive compensation in your case and design the lawsuit with this in mind.

• Can my wrongful death award be taxed?

IRS Publication 4345 states that wrongful death damages are physical damages and cannot be taxed. However, the funds may be subjected to the estate tax if the estate goes over the statutory limitation. Also, if you are awarded punitive damages, this could be taxed by the federal and state governments.

• How long with the wrongful death claim take?

It depends on the type of accident and other case factors. Some cases can be resolved in a few months, and others take years. Some reasons these actions take longer include questions about liability, the amount of insurance available, and the insurance company lowballing the value of the decedent’s life.

• Is a wrongful death settlement in the public record?

Usually, a wrongful death settlement is not public record. Settlements are generally kept between the parties of the lawsuit. In a wrongful death action, the settlement amount is known by the defendant’s insurance company and those who recover compensation for the death. All trial records will be available for public review if the case goes to court.

• How do I receive wrongful death compensation?

A settlement or verdict award is usually paid as a lump sum. A structured settlement is also a possibility.  A structured settlement works like an annuity. The money is invested with interest and paid to the heirs, monthly or annually. Your attorney can arrange to have a structured settlement setup if you want a monthly income or if the recipients of the proceeds re under the age of 18.  

Speak To A Schaumburg Wrongful Death Attorney Now

Losing a loved one in an accident is one of the most agonizing things you can go through in life. During this emotionally devastating time, you might not want to think about taking legal action. However, if someone caused the accident, holding them accountable and receiving compensation for your losses is essential. Our Schaumburg wrongful death attorney can help you.

Claim Your Justice attorneys are proud to work with clients in Chicago, Hoffman Estates, Mount Prospect, Rolling Meadows, Grove Village, Schaumburg, Hanover Park, and Oak Streamwood. Please contact Claim Your Justice at 847-434-3555 to discuss your wrongful death case.

Disclaimer

This information is not intended to be legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters, and electronic mail. Contacting us does not create an Attorney-Client relationship. An Attorney-Client relationship is created when you sign a written agreement with our law firm. Please do not send any confidential information to us until such time as an Attorney-Client relationship has been established.

An accident victim can suffer a wide range of injuries, all with long-lasting consequences. The most serious of all consequences accident victims suffer is death. When an accident results in death, the victim and their family have suffered an irreparable loss that cannot be undone. Illinois wrongful death law recognizes the catastrophic nature of this kind of accident, and the family of the deceased can sue the at-fault party or parties for compensation.

Did the Accident Cause the Death?

There are times when it is all too obvious that an accident has caused an injury. Proximity in time between the accident and the death, and the nature of the medical cause of death, as well as just common sense, all can lead to the inescapable conclusion that someone died because of injuries sustained in an accident.

It does not take a lot of medical evidence to show that someone who was alive when he was driving a car and immediately passed away inside the vehicle, died as a direct result of injuries sustained in the car accident.

There are other times when it is not so easy to tell whether an accident was the actual cause of the death, and that is an important question in Illinois’s wrongful death law.

For example, let’s say that there is an elderly person who sustains a fall in a store. He injures his shoulder so badly that he needs surgery the day after. After the surgery, he never truly wakes up from anesthesia, and after three days of lingering unconscious in the hospital bed, he passes away. Did the accident cause his death? Or a complication from the shoulder surgery? Or some other underlying medical condition that made his body unable to withstand the trauma of the surgery or the injury?

In cases like these, one error, omission, or injury can have a “domino effect” on the deceased’s health, with one injury or medical problem leading to another, until eventually leading to death.

These are all scenarios and questions that come up when a death is not immediate, or where there are “intervening causes” between an accident and a death.

That is why in many Illinois wrongful death cases, the first step is proving that the death was caused by the accident. Often, medical experts will need to be called in to testify as to the cause of the death.

Time Limits for a Wrongful Death Case

If and when it is established that the death is the result of the accident, a wrongful death case can be filed—but that is only if it is filed on time.

In Illinois, you only have two years to file a wrongful death lawsuit, unless the responsible party is a municipality or other governmental entity. Then you only have one year. Your attorney will need time to review your case, look over documents, or even retain experts, who may need their own time to review the facts of your case. Don’t wait to call Claim Your Justice.

When the Death is Not Caused by the Accident

What if the death was not a result of the injury or the accident? You may not be able to file a wrongful death claim.
For example, let’s say that Mary is in an accident where she is a pedestrian who is hit by a car. She recovers, but she is severely disabled because of injuries suffered in the accident. She files a lawsuit. Eight months later, while the lawsuit is pending, she dies from something totally unrelated to the accident.

When the case was first filed, it was not a wrongful death case—she did not die because of the accident, and in fact, lived for eight months afterward. But now she has passed. What happens to her case? Does it have to be dismissed because she is gone?

The Survivors Statute

In Illinois, her case does not die with her. It can be carried on by her relatives, in what is known as survival action, under the Illinois Survival Act. The Survival Act allows the victim, through the surviving family, to recover any and all damages which were incurred by the victim, including their pain or suffering, that was sustained from the accident all the way up until the actual death, no matter how the death was caused.

The time limit to file a survival action is two years from the date of accident. Remember the time limit is one year if the responsible party is a municipality or other governmental entity.

Damages for Wrongful Death and Survivor’s Act Claims

The damages that can be received or paid in both cases are somewhat different.

In a wrongful death case, it is the survivors—the family members of the deceased victim, usually-who are being compensated. Economic damages can also include the deceased’s medical expenses or funeral costs.

For example, family members can receive compensation for the loss of economic support that the deceased would have given if he or she had not passed away. The surviving family can sue for the emotional heartbreak of losing a beloved family member, including emotional distress.

In a survival action, the family of the deceased, through a personal representative that is appointed by a court, will continue the lawsuit filed by the deceased, to recover the damages that the deceased could have recovered if he or she had lived to the duration of the lawsuit.

When and if damages are recovered in a Survivor’s Act case, the damages belong to the estate and will be distributed in accordance with Illinois probate law. Most people do not leave “damages from my personal injury case when I am a victim in an accident” in their estate plans or their wills, so you may need to consult with a personal injury or even an estate law attorney, to see how proceeds of the lawsuit are distributed.

Remember that because the damages in a wrongful death case are damages sustained by the survivors, such as lost income, or love and a consortium of the deceased, those damages do belong to, and go straight to, the victim’s families, and are generally not subject to probate laws.

The damages will generally be distributed based on who needs them—for example, if a minor child has lost the financial support of the deceased parent, that element of damages may be paid to the minor. If a spouse would have received support, and those damages are recovered, that amount would go to the surviving spouse.

Which Action Do You File and Can You File Both?

There are times when both a wrongful death and a survival action lawsuit can be filed at the same time, for the same accident.

Generally, when the death is the result of an accident, unless the death was immediate, both a wrongful death claim and a survival action can be filed. The family will be trying to recover for their damages through the wrongful death claim (both economic and emotional or non-economic), as well as for the injuries, pain, suffering, and expenses that have been sustained by the deceased from the time of the accident to the death, through the survival action.

However, when the death is completely unrelated to the accident, the family likely would not have a wrongful death claim—they would be limited to only recovering the deceased’s losses, pain and suffering from accident to death, through the survival statute.

Likewise, if the death is immediate at the time of the accident, there may be no right to a survival claim, as the victim did not suffer anything before the accident—the entire claim may be for the family, for post-accident/post-death losses and injuries. Here, there may only be a right to file a wrongful death lawsuit.

Death Cases Can be Complex: Get Help

As you can see, a big part of analyzing damages when a victim dies is determining whether the death was caused by the accident and whether a wrongful death, survivor action, or both, can be used. There may be times when using one statute or another or both may yield a higher damages award. Sometimes the facts may make it so that you do not have a choice, but other times, when there is a choice, your wrongful death attorney can make a strategic choice, to try to maximize the recovery to the family.

Contact Our Schaumburg Wrongful Death Attorneys

Certainly, a lawsuit is no replacement for a loved one. However, when a family is suffering from emotional loss and the financial losses of a beloved family member, a wrongful death action can help the family recover and provide some financial stability for the family going forward.

Call our Schaumburg wrongful death attorneys at Claim Your Justice to schedule a free consultation at 847-434-3555 to help you if a loved one has passed away because of the carelessness or negligence of someone else.