The sudden loss of a loved one is an unbearable tragedy. When that loss is caused by another party’s negligence or wrongful act, the emotional devastation is compounded by a complex legal landscape. Families in Orland Park facing such a profound hardship often grapple with grief while simultaneously trying to comprehend their legal options. In Illinois, two distinct but related legal avenues exist for seeking justice and compensation after a fatality caused by another’s wrongdoing: wrongful death claims and survival actions.

What is a Wrongful Death Claim?

A wrongful death claim in Illinois is brought by the personal representative of the deceased person’s estate on behalf of the surviving family members. The core purpose of a wrongful death action is to compensate the family for the losses they have suffered as a direct result of their loved one’s death. These losses are personal to the survivors and would not have existed if the deceased person had not died.

The legal basis for a wrongful death claim is that the deceased would have had a valid personal injury claim had they survived the incident. Essentially, the claim asserts that the negligence or misconduct of another party led directly to the fatality, and that the surviving family members have been harmed by this loss.

Eligible Parties in a Wrongful Death Claim

In Illinois, specific family members are eligible to recover damages in a wrongful death claim. Typically, this includes:

• Spouse: The surviving husband or wife of the deceased.
• Children: Biological or legally adopted children.
• Next of Kin: If there is no surviving spouse or child, other dependent relatives, such as parents or siblings, may be considered next of kin, provided they can demonstrate a pecuniary loss.

The court ultimately determines how any recovered damages are distributed among these eligible beneficiaries, based on their degree of dependency and loss.

Types of Damages Recoverable in a Wrongful Death Claim

The compensation sought in a wrongful death claim focuses on the harm suffered by the survivors due to the death. These “pecuniary injuries” can include:

• Loss of Financial Support: This covers the income and financial contributions the deceased would have provided to their family, including wages, benefits, and retirement contributions.
• Loss of Services: This accounts for the value of household services the deceased provided, such as childcare, home maintenance, chores, and other contributions that now must be replaced.
• Loss of Society and Companionship: This refers to the emotional and relational losses suffered by the family, including the loss of love, affection, guidance, comfort, and companionship.
• Grief, Sorrow, and Mental Suffering: Illinois law allows for compensation for the profound emotional distress and sorrow experienced by the surviving spouse and next of kin.
• Funeral and Burial Expenses: Reasonable costs associated with the funeral, burial, or cremation of the deceased.

What is a Survival Action?

In contrast to a wrongful death claim, a survival action (also known as a “survivor action” or “action for survival”) is brought by the personal representative of the deceased person’s estate on behalf of the deceased. The purpose of a survival action is to recover damages for the injuries and losses the deceased suffered between the time of the injury and the time of death. It essentially “survives” the death of the injured party.

This means that if the deceased person endured pain, suffering, medical expenses, or other damages before they passed away, a survival action allows their estate to recover compensation for those specific losses. The recovered funds from a survival action become part of the deceased person’s estate and are then distributed according to their will, if one exists, or by Illinois intestacy laws.

Basis of a Survival Action

A survival action is rooted in the idea that a person’s right to pursue a personal injury claim does not disappear simply because they die. If the deceased was alive for any period, however brief, after the injury and before death, they experienced some form of harm. The survival action seeks to recover from that harm.

Types of Damages Recoverable in a Survival Action

The damages sought in a survival action are those that the deceased person themselves would have been able to claim had they lived. These can include:

• Medical Expenses: All medical bills incurred from the time of the injury until death, including ambulance services, emergency room care, hospital stays, surgeries, medications, and any other treatments.
• Pain and Suffering: Compensation for the physical pain, discomfort, and mental anguish the deceased experienced between the time of injury and death. This can be significant, even if the period was short.
• Lost Wages: Any income the deceased lost during the period between the injury and death due to their inability to work.
• Property Damage: If the incident involved damage to the deceased’s personal property (e.g., a vehicle in a car accident), those costs could be recoverable.

Key Distinctions Between Wrongful Death Claims and Survival Actions

While both claims are often pursued simultaneously after a fatal incident, they are legally distinct:

Who Benefits:

• Wrongful Death Claim: Benefits the surviving family members directly for their losses.
• Survival Action: Benefits the deceased person’s estate for losses they suffered before death; the funds are then distributed through the estate.

What is Being Compensated:

• Wrongful Death Claim: Compensates survivors for losses they incurred due to the death itself (e.g., loss of support, companionship, grief).
• Survival Action: Compensates for the deceased person’s own losses and suffering from the time of injury until death (e.g., medical bills, pain and suffering).

Legal Basis:

• Wrongful Death Claim: Created by statute to address the harm to survivors.
• Survival Action: Continues the deceased’s personal injury claim, allowing it to “survive” their death.

Statute of Limitations:

• Wrongful Death Claim: Generally, two years from the date of death, though exceptions can apply.
• Survival Action: Typically two years from the date of injury, but can also extend to two years from the date of death if the death occurs within the standard personal injury statute of limitations. It is always wise to act promptly.

Key Distinctions	Wrongful Death Claim	Survival Action
Who Benefits	Surviving family members	Deceased person’s estate
What is Being Compensated	Losses due to the death (e.g., loss of support, companionship, grief)	Deceased person’s losses and suffering from injury until death (e.g., medical bills, pain and suffering)
Legal Basis	Created by statute to address the harm to survivors	Continues the deceased’s personal injury claim
Statute of Limitations	Generally two years from the date of death, though exceptions can apply	Typically two years from the date of injury, but can extend to two years from the date of death

Common Scenarios Giving Rise to These Claims in Orland Park

Fatal incidents leading to wrongful death claims and survival actions can arise from various forms of negligence or misconduct in Orland Park and across Illinois. Some common scenarios include:

• Car Accidents: A motorist driving while distracted, speeding, or under the influence could cause a collision that results in fatalities.
• Truck Accidents: Commercial truck drivers or trucking companies might be negligent through fatigued driving, improper maintenance, or overloading, leading to devastating accidents.
• Motorcycle Accidents: Drivers failing to see or yield to motorcyclists can cause severe and often fatal crashes.
• Medical Malpractice: A healthcare professional’s negligent actions or inactions, such as misdiagnosis, surgical errors, or medication mistakes, can lead to a patient’s death.
• Nursing Home Neglect or Abuse: Elder abuse, neglect, or substandard care in a nursing home facility can result in a resident’s premature death.
• Premises Liability Incidents: Property owners failing to maintain a safe environment can lead to fatal slip and falls, negligent security incidents resulting in violent crime, or other dangerous conditions.
• Workplace Accidents: Unsafe working conditions, lack of proper training, or employer negligence can lead to fatal occupational injuries.
• Defective Products: A dangerously designed or manufactured product that malfunctions and causes a fatal injury.

In each of these scenarios, a thorough investigation is critical for establishing liability and pursuing both a wrongful death claim and a survival action.

Proving Liability in Wrongful Death and Survival Actions

To succeed in either a wrongful death claim or a survival action, it is necessary to establish that the at-fault party was negligent or committed a wrongful act, and that this directly caused the death and resulting damages. This typically involves proving four key elements:

• Duty of Care: The defendant owed a legal duty of care to the deceased. For instance, drivers have a duty to operate their vehicles safely, and property owners have a duty to maintain safe premises.¹
• Breach of Duty: The defendant breached this duty by acting or failing to act in a reasonable manner. Examples include running a red light, failing to address a known hazard, or a doctor misdiagnosing a condition.
• Causation: The defendant’s breach of duty was a direct and proximate cause of the injuries that led to the death. There must be a clear link between the negligent act and the fatality.
• Damages: The surviving family members (for wrongful death) or the deceased’s estate (for a survival action) suffered quantifiable losses as a result of the death.

Gathering compelling evidence is central to proving these elements. This may include:

• Police reports and accident reconstructions
• Medical records and autopsy reports
• Eyewitness statements
• Surveillance footage
• Expert testimony (e.g., medical experts, accident reconstructionists, security consultants)
• Financial records to prove lost income and expenses

The Legal Process for Wrongful Death and Survival Actions in Illinois

Navigating a wrongful death claim or survival action involves several stages, often overlapping given their interconnected nature.

Initial Investigation and Evidence Gathering

Immediately following a fatal incident, it is important to preserve all potential evidence. This includes collecting police reports, medical records, photographs of the scene, and contact information for any witnesses. Attorneys will launch a thorough investigation, working to identify all potentially liable parties and gather the necessary documentation to build a strong case.

Appointment of Personal Representative

For both types of claims, a personal representative (also known as an executor or administrator) must be appointed by the probate court to act on behalf of the deceased’s estate. This individual is responsible for initiating and overseeing the legal actions.

Filing the Lawsuit

Once sufficient evidence is gathered and liability is established, a complaint is filed in the appropriate Illinois court. This formal document outlines the legal claims, the parties involved, and the damages sought.

Discovery Phase

During discovery, both sides exchange information and evidence. This can involve:

• Interrogatories: Written questions sent to the opposing party that must be answered under oath.
• Requests for Production of Documents: Demands for relevant documents, such as medical records, insurance policies, or internal company reports.
• Depositions: Sworn out-of-court testimony taken from witnesses, involved parties, and experts.

Negotiation and Mediation

Many wrongful death and survival actions are resolved through negotiation with the at-fault party’s insurance company or legal representatives. Mediation, a process where a neutral third party helps facilitate settlement discussions, may also be utilized to try and reach a resolution without going to trial.

Litigation and Trial

If a fair settlement cannot be reached, the case may proceed to trial. During a trial, evidence is presented, witnesses testify, and arguments are made before a judge or jury, who will then render a verdict regarding liability and damages.

The Importance of Prompt Action: Statute of Limitations

Illinois law imposes strict deadlines for filing both wrongful death claims and survival actions, known as statutes of limitations.

• Wrongful Death: Generally, a wrongful death claim must be filed within two years from the date of the person’s death.
• Survival Action: A survival action typically must be filed within two years from the date of injury, or within two years from the date of death if the death occurs within the standard personal injury statute of limitations.

Missing these deadlines can result in the permanent forfeiture of your right to pursue compensation, regardless of the merits of your case. It is therefore vital to consult with a lawyer as soon as possible after a fatal incident to ensure all deadlines are met and your legal rights are protected.

Navigating the Complexities with Legal Assistance

The legal framework surrounding wrongful death claims and survival actions is intricate, requiring a comprehensive understanding of Illinois law, extensive experience in litigation, and the ability to compassionately represent grieving families. The process involves meticulous investigation, evidence collection, negotiation, and potentially complex courtroom proceedings.

Fotopoulos Law Office has a history of assisting families in Orland Park and throughout the Chicago area with these sensitive and challenging legal matters. Our approach involves:

• Thorough Investigations: We meticulously investigate the circumstances of the death to gather all necessary evidence and identify all liable parties.
• Evidence Collection and Preservation: We work diligently to secure critical documentation, surveillance footage, and witness statements.
• Consultation with Experts: We collaborate with medical professionals, accident reconstructionists, and financial experts to accurately assess damages and liability.
• Skilled Negotiation: We advocate vigorously with insurance companies and opposing counsel to seek fair compensation for your losses.
• Courtroom Advocacy: If a just settlement cannot be achieved, we are prepared to represent your interests in court, pursuing the maximum compensation permitted by law.

Taking Action After an Unspeakable Loss

Losing a loved one is a devastating experience. When their death results from the negligent or wrongful actions of another, the pain is compounded by a profound sense of injustice. While no amount of compensation can ever replace your loved one, pursuing a wrongful death claim and a survival action can help secure financial stability for your family and hold the responsible parties accountable.

If you are in Orland Park or the surrounding Chicago area and have lost a family member due to someone else’s negligence, we encourage you to seek legal guidance. Contact Fotopoulos Law Office today for a free, confidential consultation. We are here to listen to your story, explain your options, and help you take the necessary steps toward justice and recovery.