Illinois Legislature Passes Bill Allowing Punitive Damages In Most Wrongful Death Actions

Madison County, Ill. (May 19, 2023) – 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 underlined 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). 

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.

A similar version of the Bill was introduced previously and died before passage. Opponents included representatives of the Illinois Retail Merchants Association, Illinois Health Care Association, Illinois Manufacturers' Association, Illinois Chamber of Commerce, and Illinois Defense Counsel. The Illinois Trucking Association, Mid-West Truckers Association, National Federation of Independent Business, Illinois Fuel & Retail Association, the state Association of Chiefs of Police, the state Retail Merchants Association, Chemical Industry Council of Illinois, Associated Builders and Contractors of Illinois, American Property Casualty Association, Illinois Insurance Association, Illinois Association of Aggregate Producers, and multiple chambers of commerce voiced opposition to the current bill.

For more information on this legislation, contact the authors or editor of this alert. Visit our General Liability Practice page and Asbestos Litigation Practice page for additional alerts in this area.

Authors:

John Hackett, Associate

Jarred Reed, Associate

Editor:

Jeffrey Bash, Managing Partner - Madison County, IL