10 Year in Review | 2011

For over 100 years, families thathave lost loved ones due tonegligence were unable to recover

for the grief and sorrow associated withtheir loss. Unfortunately, they werelimited to recovering only “pecuniaryloss,” which means a loss relating tomoney. While that pecuniary lossincluded loss of society — loss of thebenefits of love, affection, care,companionship, comfort, guidance, andprotection — evidence of the survivors’grief was inadmissible. In fact, IPI 31.07specifically stated that in wrongful deathactions, jurors were not to consider the“grief or sorrow for the widow and nextof kin” in determining any pecuniary loss.

Since 1853, when the Wrongful DeathAct was enacted, this was the law.Defense attorneys consistentlyreminded the jury of this rule. Defenseattorneys would begin the process in voirdire by asking the jury, “Can you beimpartial and not consider the plaintiff’ssadness over this loss?” And then inclosing arguments, defense attorneyswould reiterate to them, “Remember,this case is not about the family’ssadness over this loss.” Fortunately, thisall changed in May 2007.

Illinois is now in alignment with 22other states. The 2007 amendment tothe Act allows a jury to award damagesas a result of a negligent death,including “damages for grief, sorrowand mental suffering, to the survivingspouse and next of kin of suchdeceased person.”

When the changes were first made,many defense attorneys argued that thenew categories of damages would havelittle effect on jury verdicts. They arguedthat juries had essentially been awardingthese damages under the eightcategories of “loss of society” that wereallowable at the time. Given this, somefelt the change would have little impacton verdicts. Plaintiff’s attorneysperceived the amendment as a victoryfor families who had lost loved ones dueto negligence and whose grief andsorrow, which was often substantial, hadbeen unrecognized for over a century.

The actual effect of this new category ofdamages on jury verdicts is still to bedetermined. Although the change cameabout four years ago, these cases are justnow coming to trial.

One change is certain. Verdict forms willnow contain a separate line item for“grief, sorrow and mental anguish.” Thisopens the door for plaintiff’s attorneysto demonstrate not only the loss ofsociety as a result of the loved one’sdeath, but also to explain the harmsuffered as a result of the actual grief,sorrow and mental anguish experienced.The change not only affects whatplaintiff’s attorneys can argue, butperhaps even more importantly, it affectswhat defense attorney cannot argue.Defense attorneys can no longerconstantly remind the jury that theymust not take into account the plaintiff’ssadness and sorrow over theirnegligently caused loss.

So what exactly are jurors able toconsider under the new law?

Grief has been defined as the reaction toa loss, which can and usually does havecognitive, behavioral, physical and mentalhealth symptoms. Emotional reactions togrief can include guilt, anger, anxiety,sadness and despair. Physicalmanifestations of grief can includesleeping problems, changes in appetite,physical ailments or illness. Moreover,although everyone grieves differently,research indicates and experts generallyagree that the way a person dies plays arole in the grieving process. The impact ofgrief depends on various factors includingthe predictability of the loss, thepreventability of the loss and the degreeof personal suffering. For example, if aloved one dies of old age or from a“natural” progression of a disease, thedeath is expected in some ways. In thosecircumstances, people have a chance tocome to terms with the loved one’simpending death, which often helps thegrieving process. Those who suffered theloss feel as though they had time toprepare. If, however, a loved one diesfrom a sudden, unexpected orpreventable death, the grieving processcan be much more intense and prolonged.All of this information is now relevant toa jury’s assessment of damages.

By definition, in a claim brought underthe wrongful death action, the loss wasat least preventable and most timesunpredictable, which may have asubstantial impact on the grieving

The Effects of Grief and Sorrow DAMAGES IN ILLINOIS WRONGFUL DEATH CASES

By Steven M. Levin and Patricia L. Gifford

Levin & Perconti, Chicago

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process. Furthermore, while grief, sorrowand mental anguish can be explained toa jury through family members’ owntestimony, this “new” category ofdamages also opens an entirely newcategory of potential expert testimony.

Expert testimony from psychiatrists,psychologists, counselors and eventhanatologists (experts in death, dyingand bereavement) may now play animportant role in helping explain to ajury what impact the defendant’sconduct played in the grieving processand mental anguish suffered by thoseleft behind. Tools such as the BriefSymptom Inventory (BSI), whichmeasures various symptoms includingdepression, anxiety, hostility andcognitive dysfunction, may now play animportant role in helping to explain howsurviving family members’ grief andmental suffering is different from thosewho have not suffered a loss as a resultof negligence.

In some cases, particularly thoseinvolving non-wage earners, damages asa result of grief, sorrow and mentalanguish are the primary damages. Whena parent loses a child — although a non-wage earner — in addition to thesubstantial grief and sorrow suffered, theloss of society suffered can beconsiderable. Loss of society is measuredin part by the life expectancy of both thesurvivor and the decedent. The parenthas lost the society, companionship, loveand affection for potentially many years,possibly decades, depending upon the

ages of the parent and the child.However, in cases involving the elderly,also non-wage earners, life expectancy ofthe parent is generally shorter due to theparent’s age or medical conditions soloss of society may be less. In such a case,grief, sorrow and mental anguish may bethe primary category of damages.

In nursing home cases, for example,family members usually struggle with theinitial decision to place their loved one ina nursing home. The decision oftenriddles family members with guiltdespite that medical necessity dictatedthat the loved one needed 24-hour care,which the family members simply couldnot provide. When negligence on thepart of nursing home and/or staff thenleads to the death of the loved one, thefamily members’ grieving process isintensified by this pre-existing guilt. Inthese cases, there is simply no way tofully and fairly compensate the familyfor the loss, aside from considering thegrief and sorrow experienced as a resultof the defendant’s negligence.

In order for plaintiffs to finally receivefull and fair compensation in light of thelegislature’s long-awaited recognition ofthis category of damages, plaintiff’sattorneys will need to rethink how theyapproach wrongful death cases. Thisprocess will need to begin long beforetrial. Plaintiff’s attorneys will need toevaluate the circumstances of eachwrongful death case to determinewhether the case may warrant retainingan expert on grief and sorrow. Whether

to retain psychologists or psychiatriststo evaluate the next of kin’s grievingprocess who can then testify at trial asto the impact the loss had on those leftbehind is a consideration that shouldtake place in the early stages oflitigation. In addition, just as defenseattorneys repeatedly reminded the juryof what the case was not about beforethis change, at trial plaintiff’s attorneyswill need to consistently remind the jurythat in addition to the otherconsiderations and categories ofdamages, this case is about the sadness,the loss, the grieving and the mentalsuffering of the next of kin.

It is too early to quantify the effect, ifany, that grief and sorrow will have onjury verdicts. Whatever the impact, therecognition of grief, sorrow and mentalanguish as compensable areas of damagesin wrongful death claims allows the juryto more fully and fairly compensatefamily members for the death of a lovedone due to negligence. �

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