Proving Fault

Finally, we want to tell you more about what you need to prove in order to hold the defendant liable in order to obtain the types of damages we discussed. How do you prove fault in an Illinois wrongful death case? Generally speaking, the elements of a wrongful death claim under the Illinois Wrongful Death Act (740 ILCS 180/) are similar to the elements of a personal injury lawsuit. We will go through the key elements of a wrongful death claim, clarifying what a plaintiff must be able to prove in order to be eligible for compensation.

Elements of an Illinois Wrongful Death Claim: How a Plaintiff Proves the Defendant’s Fault

The following are the elements that an Illinois wrongful death plaintiff must prove in order to show that the defendant was at fault for the decedent’s fatal injuries and that, as a result, the plaintiff is entitled to receive compensation:

  • Defendant owed a duty of care to the deceased
  • Defendant breached the duty of care
  • Deceased suffered fatal injuries that resulted from the defendant’s breach of the duty of care

What is a duty of care, and how does a defendant breach it? Duty of care refers to everyone’s responsibility of performing any act with safety and a regard for others. Many instances of personal injury, such as car accidents or wrongful death lawsuits, are based on a theory of negligence, or the fact that duty of care was violated. For instance, whenever you get behind the wheel of a car or allow someone onto your property, for instance, you owe an ordinary duty of care to other drivers on the road or guests on your property. When you are driving on public roads, that duty of care to other drivers automatically attaches.

Duty of care is based on the theory of ordinary care. The Illinois Pattern Jury Instructions clarify that, in most negligence cases, ordinary care is defined as “the care a reasonably careful person would use under circumstances similar to those shown by the evidence.” In other words, duty of care only extends to the reasonable amount of care a person should take when performing an act. Juries are instructed that the law does not define how a reasonably careful person would act under the given circumstances, and juries are given the opportunity to decide.

How Comparative Fault Can Affect Potential Damages

Under Illinois law (735 ILCS 5/2-1116), the deceased’s comparative fault can be taken into account when awarding damages to the survivors. Typically, comparative fault or contributory negligence is a defense raised by the defendant in order to diminish or minimize the defendant’s proportion of the fault. In Illinois, if a plaintiff (or in the case of a wrongful death claim, a decedent) bears some responsibility for the accident and injuries, she or he can still recover as long as she is not 51 percent or more to blame. Then, the damages award is reduced by the deceased’s proportion of negligence.

For example, if a jury awards a survivor $500,000 in a wrongful death lawsuit but determines that the deceased was 20 percent responsible, that award will be reduced by 20 percent (or $100,000) and the survivor will receive $400,000. If the defendant is able to convince a jury that the deceased was 51 percent or more at fault for the accident or the severity of the injuries, then the survivors may be unable to recover anything and may be barred from compensation.


Learning that a loved one has been killed in a preventable accident is one of the most devastating occurrences that anyone can experience. When this happens, it can feel extremely difficult to even think about contacting an Illinois wrongful death lawyer about your case. However, the loss of a loved one often means the loss of financial and emotional support that can make the death of your family member even harder. While a damages award cannot bring back your loved one, it can provide you with the financial compensation you deserve to pay off bills related to your family member’s injury care, as well as to help cover the lost wages associated with your loved one’s death.

Illinois law allows survivors to recover compensatory damages for pecuniary losses, which can provide compensation for objective financial losses as well as more subjective losses.

However, you do not have too much time to file a claim. The statute of limitations only gives survivors one year from the date of the deceased’s death to file a wrongful death claim. It is important to recognize that the statute of limitations for personal injury claims—in which the injury victim survives his or her injuries—is longer than the statute of limitations for wrongful death cases.

An experienced Illinois wrongful death lawyer can get started on your case immediately. Contact Tuite Law today for more information about how we can assist you.