Illinois Passes Bill to Allow Punitive Damages in Wrongful Death Lawsuits

On May 18, 2023, the Illinois legislature passed House Bill 0219, amending the Illinois Wrongful Death Act to allow for the recovery of punitive damages in wrongful death actions. The bill will soon be sent to the Governor’s desk for signature. If signed into law, the statutory change will allow heirs of decedents to recover punitive damages in wrongful death actions.

The proposed amendment to the Illinois Wrongful Death Act is outlined below:

Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages including punitive damages when applicable, in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, including punitive damages when applicable, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. Nothing in this Section affects the applicability of Section 2-1115 of the Code of Civil Procedure or Section 2-102 or 2-213 of the Local Governmental and Governmental Employees Tort Immunity Act. Punitive damages are not available in action for healing art malpractice or legal practice or in an action against the State or unit of local government or an employee of a unit of local government in his or her official capacity. The changes made to this Section by this amendatory Act of the 103rd general Assembly apply to actions filed on or after the effective date of this amendatory Act. 740 ILCS 180/1, as proposed

For years, Illinois law has “consistently held that, absent specific statutory authority or very strong equitable reasons, punitive damages are not permitted in Illinois in an action under the Survival Act (755 ILCS 5/27-6 (West 2000)) or as part of a common law action for wrongful death.” Marston v. Walgreen Co., 389 Ill. App. 3d 337, 344 (2009).

House Bill 0219 supporters have stressed the rarity of punitive damages awards. According to the Illinois Trial Lawyers Association, a supporter of the bill, Illinois juries have awarded punitive damages over $10,000 in only 18 personal injury cases over the last decade. Additionally, in 2005, the U.S. Department of Justice, in its most recent nationwide survey on punitive damages, found that punitive damages were awarded in only 3% of successful cases involving the most common types of personal injury claims. Punitive damages for product or premises liability and car crashes were awarded in 1 percent or fewer cases according to the DOJ’s report. The study was based on a survey of courts in the nation’s 75 most populous counties, including Illinois’ Cook and DuPage counties.

Should the Governor sign the bill into law (as expected), punitive damages will be available for most wrongful death actions filed on or after the date of the Governor’s signature, except for actions related to legal malpractice, medical malpractice, and against state or local government, or their employees acting in their official capacity.