Allow Punitives in Wrongful Death Cases

Chicago Lawyer December 1, 1999

By Robert A. Clifford

The Honorable Joseph H. Goldenhersh, a most-learned jurist on the Illinois Supreme Court, once commented that “it is cheaper to kill your victim than to leave him maimed” when dealing with Illinois wrongful death and survival statutes. Mattyasovszky v. West Towns Bus Co., 61 Ill.2d 31, 38, 330 N.E.2d 509 (1975).

He was referring to the interpretation of these statutes that prohibits punitive damages in wrongful death and survival actions but allows it in personal injury lawsuits. Wrongful Death Act, 740 ILCS 180/2 (1994); Survival Act, 755 ILCS 5/27-6 (1994). Courts routinely allow punitive damages when the defendant engaged in willful and wanton conduct and the victim survives.

Take, for instance, the hypothetical of two unrelated passengers involved in a tragic car accident by a repeat drunken driver. One passenger dies. The other survives.

It is difficult to distinguish for families the law’s differing treatments of their legal claims for punitive damages arising out of the same accident with, perhaps, the only differing fact being the seating of their loved one in that car.

The purpose of the Illinois Wrongful Death Act is to compensate the next of kin of the decedent for the pecuniary loss based upon dependency. Because it has been construed to be compensatory in nature, courts have strictly construed wrongful death statutes and have held that unless the law explicitly provides for punitive damages, they will not be allowed.

Such reasoning is grounded in what is now antiquated reasoning that did not even recognize a cause of action based on the death of a person. That rule was first articulated nearly 200 years ago in Baker v. Bolton,10 Rev.R. 734, 734-35 (K.B.1808).

To alleviate the harshness of this rule, the Illinois Legislature adopted the Illinois Survival Act in 1829 and subsequently allowed recovery under the Wrongful Death Act in 1853.

The Illinois courts first construed these two acts together in Holton v. Daly, 106 Ill. 131 (1882). There, the court held that the Wrongful Death Act limits recovery to pecuniary damages for negligent acts resulting in death and that such damages are to be awarded for the benefit of the decedent’s survivors. The court added that this Act provides the exclusive remedy for personal injuries that caused the decedent’s death.

The Holton court also found that the Survival Act was to permit the decedent’s estate to bring certain types of actions that would otherwise abate at death under the common law, and, thus, provides only for the actual physical pain and mental suffering experienced by the victim prior to his death.

But Holton was expressly overruled in Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 383 (1974), which allowed the estate to recover medical and funeral expenses. In that case, the Illinois Supreme Court recognized that although the remedy available under the Wrongful Death Act is often incomplete and amounts to “inadequate justice,” it would nonetheless deny punitive damages and leave that question for state legislators. Id., at 431. Murphy, though, left unanswered whether punitive damages were also recoverable under the Survival Act.

That question was discussed in Mattyasovszky. There, despite a strong dissent by Justice Goldenhersh, the court held that recovery under the Survival Act is limited to compensatory damages. The decision had an enormous impact upon the 12-year-old boy crushed by a bus in that case because denial of punitive damages reportedly benefited the defendant by reducing the plaintiff’s recovery by 40 percent.

This incongruous result was recognized by the appellate court in that case, which said, “Logically, it would seem that punitive damages should be allowed to the estate of the decedent under the survival statute . . . Despite our highest desires, however, law is not always based upon logical rationale,” 21 Ill.App.3d 46, 54, 313 N.E.2d at 496 (1st Dist. 1974). The trial judge in that case also stated that “as a matter of law what I have done is right. As a matter of justice, what I am doing is wrong.” Transcript of Proceedings before Judge Paul Elward, Nov. 25, 1980, at 12-13.

Other courts, too, have recognized the perpetuation of “apparent absurdity of this result.” Burgess v. Clairol, Inc., 776 F.Supp. 1278 (N.E.Ill. 1991). They, too, are disturbed that the real purposes of punitive damages — punishment of the particular tortfeasor as well as deterrence of others from engaging in the same misconduct — are not carried out.

Some courts, instead, have focused on the equitable considerations at issue and have created a common law cause of action for wrongful death, thereby allowing punitive damages.

In Illinois, the notion of the potential unfairness of having common law claims for punitive damages hinge solely on whether the victim survives the trial was considered in Froud v. Celotex Corp., 98 Ill.2d 324, 456 N.E.2d 131 (1983). Although the opportunity to eliminate the dichotomy and join a growing number of states permitting punitive damages in death situations was present, the court, instead, chose to perpetuate the double standard and Justice Goldenhersh’s harsh adage.

But, rather than contort justice and rely on a strict interpretation of the statutory language of these acts, the courts should recognize that “the rule of abatement has its roots in archaic conceptions of remedy which have long since lost their validity.” Bryant v. Kroger Co., 212 Ill.App.3d 335, 338, 570 N.E.2d 1209 (3d Dist. 1991).

Justice Goldenhersh argued that precedent should not stand as an insurmountable obstacle to change: “We have repeatedly held that the doctrine of stare decisis is not an inflexible rule requiring this court to blindly follow precedents and adhere to prior decisions, and that when it appears that public policy and social needs require a departure from prior decisions, it is our duty as a court of last resort to overrule those decisions and establish a rule consonant with our present day concepts of right and justice [citations omitted].”

So, too, the courts today should re-examine the issue of the disallowance of punitive damages in death cases and have the courage to determine what is just and denounce, as Justice Goldenhersh so boldly pointed out nearly 25 years ago, the adage that “it is cheaper to kill than to maim.”

To do otherwise, defies logic and common sense.

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