Litigation Alert: Illinois Adds Claims For "Grief, Sorrow and Mental Suffering" In Wrongful Death Claims

Attorneys: Guolee, Terrence F.

On May 31, 2007, Illinois Governor Rod Blagojevich passed an amendment to the Illinois Wrongful Death Act, 740 ILCS 180/2 (2007). This Amendment amends the Act to, for the first time, provide that a jury may award damages for "grief, sorrow, and mental suffering" to the surviving spouse and next of kin of the deceased. Moreover, the amendment provides that any amount reduced from a contributorily negligent beneficiary's share of damages shall be distributed to the other beneficiaries in proportion to their respective degrees of dependency - rather than reducing the judgment against the defendant(s).

This is a major change in wrongful death cases and will greatly expand potential exposure to Illinois defendants and businesses. It remains to be seen how the Supreme Court Committee on jury instructions will define "grief, sorrow and mental suffering," or if the Committee will leave the definition of what is recoverable in this area up to the arguments of plaintiffs' counsel and, ultimately, the imaginations of the jurors.

As enacted, the amendment is set to "take effect on becoming law," and will apply to all cases where the death occurred after May 31, 2007. However, the amendment leaves open the question as to whether the added areas of damages will be available in currently pending cases and apply "retroactively."

While previous amendments to the Act clarified the retroactivity (or lack thereof) of the particular amendments, this amendment is silent on this issue and application of the amendment to current cases will likely need to be litigated in the courts. While, generally, substantive changes in the law are not applied retroactively, we expect plaintiff counsel will argue that the amendment's silence on this issue reflects an intent to apply the change to pending cases.

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Querrey & Harrow attorneys have extensive experience in defending wrongful death claims throughout Illinois. If you have any questions regarding the effect of the amendment, to reserving for added exposure due to this amendment or questions regarding insurance coverage issues related to this amendment, please contact Terrence Guolee at 312-540-7544, or via This email address is being protected from spambots. You need JavaScript enabled to view it..

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