On May 18, 2023, the Illinois General Assembly passed House Bill 219 (Bill) which, if signed by Governor Pritzker, would allow punitive damages in wrongful death cases. Illinois law does not currently permit punitive damages for recovery, only allowing compensatory damages. Suits against state and local government officials will still be exempt from damages if the legislation passes.

The Bill passed expeditiously through the Illinois House with a 75-40 margin early morning on May 16, 2023 and through the Illinois Senate with a 37-19-1 margin two days later. Under Illinois legislative procedure, once a bill passes through both houses of the General Assembly, it is sent to the Governor’s desk within 30 days for action. Thereafter, the governor has 60 calendar days to decide whether to sign the Bill and immediately enact it into law, or veto it and return it to the General Assembly. If the governor does nothing in those 60 days, the Bill will automatically become law. Alternatively, if the governor elects to veto the law, it is sent back to the General Assembly, where the veto could be overturned by a 3/5 vote in each house.

If signed by Governor Pritzker, the Bill would grant the decedent’s heirs the right to pursue punitive damages in wrongful death cases. Section 219(2)(a) of the proposed statute states that the jury may award damages as they deem “fair and just compensation” regarding injuries resulting from death, such as grief, sorrow, and mental suffering, and punitive damages when applicable. There, the bill amends the Wrongful Death Act enabling civil litigants to receive punitive (pain and suffering) damages, and changes the Probate Act of 1975, allowing punitive damages for people who survive.  The bill makes no limit on the amount of damages that can be awarded.

Illinois is one of sixteen states that does not currently allow for the recovery of punitive damages in wrongful death cases. State law does allow plaintiffs in personal injury cases to seek punitive damages; however, when the plaintiff has died from his or her injuries, punitive damages are precluded. The burden of proof for punitive damages to be awarded includes showing the specific action or actions that led to an individual’s wrongful death and whether there was any attempt of a cover-up. While not referenced in the Bill, the pleading of punitive damages is generally governed by 735 ILCS 5/2-604.1, which discusses how punitive damages may be pled in all actions on account of bodily injury or physical damage to property, based on negligence or product liability.  This legislation will dramatically affect wrongful death cases involving product liability, personal injury, and toxic tort state-wide as it adds a new avenue of recovery in wrongful death cases. This potential new law has the possibility to increase claims, litigation, jury verdicts, and settlement costs. Attorneys defending wrongful death actions should carefully review the allegations and whether they may allow punitive damages when assessing potential damages in a case.

Written with the assistance of Stella McMillan, a summer associate in the Husch Blackwell LLP Chicago, Illinois office.