A wrongful death lawsuit can only be filed by the “personal representative” of the victim. The victim may have appointed this representative in his or her will. If there is no will, a person can petition the local Probate Court to be appointed as the personal representative.

The claim is brought for the “exclusive benefit” of the victim’s surviving spouse and “next of kin.” Under the law, next of kin includes “blood relatives” in existence at the time of the victim’s death who would take property if the victim had died without a will.

Any person or company that is legally at fault for causing the death of another can be sued by the family of the deceased. Fault typically means negligent, reckless or intentional conduct. Common situations are:

Motor vehicle accidents – Distracted drivers, aggressive drivers and drunk drivers can kill others in car, truck and motorcycle accidents. Pedestrians and bicyclists may be fatally harmed as well.

Medical malpractice – A health care provider whose substandard care leads to a death commits medical malpractice. Fatal medical errors can include a missed or delayed diagnosis, surgical errors, medication mistakes or errors that lead to birth injuries. (An unborn fetus is considered a “person” under Illinois law, and damages may be sought for the death of the fetus.)

Nursing home abuse and neglect – A facility’s owner, administrators and staff may be liable if a resident dies under their care due to careless or intentional conduct.

Work-related accidents – The survivors of a killed worker may be able to go beyond workers’ compensation benefits if a non-employer caused a loved one to die on the job.

Dog bites / animal attacks – A pet owner can be held financially responsible if an animal attacks and kills an adult or a child.

Defective products – Manufacturers and others in the distribution chain may be sued for allowing consumers to use a faulty product (or failing to provide a proper warning about risks). These cases often arise with medical devices and prescription drugs.

In some cases, a city, county, state or federal agency may be responsible for the death of a loved one. Depending on the agency and facts of the case, the agency may be immune from a civil lawsuit or damages recovered from the agency may be capped. It will be important to work with a law firm that understands how immunity impacts your case.

The damages that can be recovered after the death of a loved one depends on whether the claim is brought as a survival action and/or the wrongful death statute.

In a survival lawsuit, the estate may recover for harm the victim suffered between the time of injury and time of death, including:

• Medical expenses
• Conscious pain and suffering
• Conscious pain and suffering

The estate or individual survivors may bring a separate claim to recover funeral expenses.

In a lawsuit filed under the wrongful death statute, the survivors may recover “just and fair compensation” for their own pecuniary losses, including the loss of:

• Loss of financial support
• Loss of society and companionship
• Loss of services

The amount is based on evidence of what the deceased victim typically contributed in the past and likely would have contributed in the future. The amount must reflect the victim’s personal expenses and other factors, including his or her age, health and habits at the time of death. Grief and sorrow damages may also be recovered.

The amount also hinges on the degree of a survivor’s dependency. In this sense, a survivor’s relationship to the victim plays an important role. A spouse may seek to recover for a loss of consortium, for instance, while a child may seek a recovery for the loss of a parent’s guidance.

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Even though your loved one or you may have been partially at fault for causing an accident or injury that led to the death, you are not necessarily barred from a recovery under Illinois law.

If the victim’s fault is more than 50 percent of the cause of his or her death, neither a survival nor a wrongful death case can be pursued. However, if the victim’s fault is not more than 50 percent of the cause, damages can be recovered. However, those damages would be reduced in proportion to the victim’s fault.

Additionally, in a lawsuit, the fault of those survivors seeking to recover damages is taken into account. If a survivor’s fault contributes more than 50 percent to the cause of death, a recovery is barred. If not, the survivor may recover damages. However, those damages would be reduced in proportion to the survivor’s degree of fault.