Punitive Damages in Wrongful death and survival cases

Some of my friends and visitors may have noticed that it has been quite some time since I last blogged, and it is something that I have been meaning to do. To be honest though, nothing I’ve seen or read on an issue or topic recently has sparked my desire or interest enough to take the time to do so. Additionally, other things, responsibilities, interests, obligations to current clients, a knee surgery, a much needed vacation, and mood, I think have also hindered my desire to post something to better educate my visitors, existing clients, and potential clients; and, while the desire to provide information seekers the education and information they may be searching for is one reason bloggers blog, search engine optimization gurus and social media experts will tell you that blogging is also a very good self-promotional tool and helps increase web rankings. So, because of this, it took a lot of pondering before I figured out what to blog about, and ultimately decided to write about this particular issue. It is also an issue that my office recently had to deal with in a wrongful death case we spent years prosecuting and was just recently able to bring to finality.

Over the course of the past several years, our firm represented the Estate of a deceased motorcyclist who was killed when a driver of a motor vehicle pulled out of a bar’s parking lot directly into the path of our decedent. The driver of the vehicle leaving the bar had a BAC quite a bit above the legal limit, and as I just mentioned, had just left the property of the bar he had been drinking at. In any event, our decedent was not wearing a helmet and likely died instantaneously; not to say that the helmet would have saved his life, but it very well may have. After much research and investigation into other potential causes of action against the tavern and property owner, it was decided that our only causes of action lied in negligence against the driver for wrongful death, and a dramshop cause of action against the tavern and property owner. The decedent left two children, both of whom were minors at the time they lost their father, and an ex-wife now responsible for raising these two children without the benefit of any support or assistance from her now deceased ex-husband. So, you might be saying to yourself, the other driver either killed or contributed to the death of the decedent, so that family must be entitled to a rather large sum of money to compensate them for their loss. Due to the state of the law in Illinois, your thoughts are simply that, wishful thinking. Had their father survived, but been left with permanent injuries, your initial thoughts would have been accurate. How can that be you ask? Someone died!! The short answer and reason for this absurdity – an absurdity in my opinion at least – is due primarily to the fact that wrongful death causes of action, created by the Illinois Legislature in 1853 through the Wrongful Death Act , are statutorily created causes of action that did not exist at Common Law and do not allow recovery for punitive damages.

So, if that is the law, how is the family compensated for their loss if the defendant driver does not have or has very little insurance? Very good question! The family can pursue damages for pecuniary losses. Pecuniary losses include deprivation of support, depravation of the companionship, guidance, advice, love and affection, and now mental suffering.) Pecuniary loss can include loss of gifts, benefits, goods and services, and society, taking into consideration the gifts, benefits, goods and services customarily contributed by the decedent in the past and was likely to contribute in the future. The family can also seek compensation for loss of instruction, moral training, superintendence of education the decedent may have reasonably be expected to give his children had he lived, taking into consideration his age, sex and health; his habits of industry and thrift; his occupational abilities; and his relationship with his children. However, If the defendant driver does not have insurance, the defendant is more or less judgment proof, unless he or she has equity in other assets (such as a home, vehicle or liquid assets) that may allow the Estate of the decedent to place a lien on those assets after a judgment is secured. Even if there are assets with equity, unless a jury returns a verdict for punitive damages, the defendant can simply bankrupt the judgment if that option is available to him, and walk away without paying a nickel. Oh, and guess what, as previously indicated, punitive damages are not currently allowed in Wrongful Death and Survival actions. So, where does that leave the family of the decedent who has lost their loved one? Mostly, Out-of-Luck!!

Seems a little unfair doesn’t it? The victim lives, and punitive damages are available, but he dies, sorry. So, as the law currently stands, a defendant driver who either kills or contributes to the death of another, who was driving without state mandated insurance, and who committed an intentional tort can just walk away without any recourse should he be judgment proof and have the ability to discharge the debt in bankruptcy? How can this be? What can be done about it? To answer these questions, one only needs to turn to the Illinois General Assembly. As previously mentioned supra, Wrongful Death and Survival Actions were created by the legislative branch, so they can easily amend the statutes to enable plaintiffs to pursue punitive damages in such cases. With all of the attention that has been given over the years by the Illinois General Assembly to the social implications of those driving while under the influence, the increased enhanced penalties the General Assembly continues to impose on DUI drivers, the atrocities suffered by those who have fallen victim to those who decide to get behind the wheel while impaired, and the attention given to the problem by legislatures, the media, and social interest groups such as MADD., it is amazing to me that this conundrum has not been remedied

Should MADD., other social interest groups or one of our legislatures fail to close this loophole, the only other possible solution is that the Illinois courts create a judicial theory that would allow the Estate of the decedent the ability to pursue punitive damages. One court did just that, although its holding hasn’t seemed to take hold elsewhere in our judiciary. See Penberthy v. Price, 281 Ill.App.3d 16, 666 N.E.2d 352 (Ill. App. Ct. 5th Dist 1996) (relating to punitive damages in survival actions); Ford v. Herman, 316 Ill.App.3d 726, 737 N.E.2d 332 (Ill. App. Ct. 5th Dist. 2000); Hennessy v. Foley, 154 Ill.App.3d 1039, 507 N.E.2d 1258 (Ill. App. Ct. 5th Dist. 1987).

In Penberthy, Defendant Kenly operated a motor vehicle while intoxicated, and while doing so, crossed the centerline and collided with the vehicle being driven by Michael Penberthy. 1) Penberthy and his passenger, David C. Walpole were injured, and Kenly died as a result of the accident. Plaintiffs sought punitive damages for the willful and wanton behavior of Kenly. Kenly’s Estate filed a motion to dismiss alleging that the Survival Act only allows the recovery of compensatory damages where either the victim or the tortfeasor is deceased.

Relying on Raisl v. Elwood Industries, Inc., 134 Ill.App.3d 170, 479 N.E.2d 1106 (1985); Grunloh v. Effingham Equity, Inc., 174 Ill.App.3d 508, 528 N.E.2d 1031 (1988); and Howe v. Clark Equipment Co., 104 Ill.App.3d 45, 432 N.E.2d 621 (1982), the fifth district upheld the punitive damages award in Penberthy. Penberthy, 666 N.E.2d at 355-56. Quoting Grunloh, the court stated:

The factors generally considered in determining whether an action for punitive damages survives are: (1) whether under ordinary circumstances the requested punitive damages have a statutory basis or are an integral component of a regulatory scheme and the remedy available thereunder; and (2) whether strong equitable considerations favor survival of an action for punitive damages. Matters which are relevant in considering the second of the above factors include whether the defendant’s alleged conduct offends against a strong and clearly articulated public policy; whether the underlying conduct constituted intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence; and whether absent an award of punitive damages, a plaintiff who prevailed on the merits of his or her claim would at most be entitled to only a comparatively small recovery.

Penberthy, 666 N.E.2d at 356.

The court concluded that the second factor quoted above was applicable and held that “[Kenly’s] conduct, driving under the influence of alcohol, unquestionably offends against a strong and clearly articulated public policy.” The fact that driving under the influence is also a criminal offense weighed heavily in the court’s decision, as did the strong equitable considerations justifying the survivability of the punitive damages claim against the decedent’s estate.

In our case, after we filed a motion for leave to amend our complaint in an effort to allow us to seek punitive damages against the intoxicated defendant driver that caused or contributed to the death of our decedent, we argued that Penberthy was applicable, and that we should, therefore, be allowed to pursue punitive damages against the defendant. Our request was denied; obviously, a ruling which I did not agree with then, and still do not agree with today. In fact, had the defendant not decided to settle, it was an appeal I was very much looking forward to, and which I would have solicited amicus briefs on.

The only true distinction that I see between Penberthy and our case is this: in Penberthy, surviving plaintiffs sued a decedent driver, whereas in our case, decedent plaintiff was suing surviving defendant driver. A distinction I fail to see, and an injustice I truly do. Personally, I think the fifth district’s opinion is well rationalized, and should be adopted by the rest of the districts of the Illinois Appellate Court. Aren’t the equitable considerations the fifth district relied on to uphold the punitive damages award in Penberthy, applicable in any case in which death is caused by an intoxicated driver? Doesn’t that driver’s conduct still offend against a strong and clearly articulated public policy? Doesn’t the underlying conduct constitute an intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence? Lastly, isn’t the estate of the decedent still left with a comparatively small recovery if punitive damages aren’t available, and more importantly, left with nothing if the award is dischargeable in bankruptcy? Isn’t the threat of punitive damages yet another deterrent to someone getting behind the wheel after he’s had too much to drink?

It is my belief that all of the concerns expressed by the fifth district are applicable regardless of who is blessed enough to walk away from such a tragedy. However, the behavior of the intoxicated driver should, without question, expose him to punitive damages. Making this remedy available should also serve as yet another weapon in the arsenal of remedies available against those who may be inclined to put their life and possible other lives at risk by getting behind the wheel after they’ve had too much to drink. So, talk to your state legislatures or MADD., and let your voice be heard by those who have the ability to close this loophole in the laws of our State.

1. Before I began this blog, my very capable assistant, Jeanette, and the other girls in the office were having a discussion about the Casey Anthony trial. During the discussion, one of the girls was expressing her outrage that Ms. Anthony was found not-guilty of the murder counts she was facing. That’s when Jeanette suggested that I blog about the Anthony trial and the issues that presented themselves in that case. I huffed at the idea and still am as I’m sitting here typing. “No”, I said, “I’m sure there are plenty of people who are going to be writing about that circus show for some time to come; and, I really didn’t follow the case that closely” – I also really just don’t care – As the title of my blog suggests, this blog is not about that trial, but I will share with you that I wasn’t really surprised at all by the verdict (not that I agree with it, but I have to have faith that those 12 people came to the right decision, and whether or not she is truly guilty is now between her and her Savior), and in fact, I had told someone within a few days of the verdict that I thought she might be found innocent primarily due to the fact that most of the case hinged on circumstantial evidence. Honestly though, I’ve never really been one to follow the big media cases – O.J., Michael Jackson, Barry Bonds, and other celebrities or media darlings who for some reason found themselves in the press really just bore me honestly, and often there really isn’t a whole lot to learn from them. Their issues also often don’t have much practical application in my opinion; of course, I could be wrong, and maybe I could have witnessed some great lawyering; or, at the very least, some really good entertainment. I guess Roger Clemmons is next up to bat – pun intended. Follow it closely, although I can assure you that I won’t be.
2. yes, yet another sad story to tell your loved one who refuses to wear a helmet while riding; unfortunately, I personally have witnessed the death of several in my lifetime
3. please see my previous blog about dramshop causes of action dated December 6, 2010, located here: http://doddslawoffice.com/?p=263
4. See 740 ILCS 180/0.01
5. See Clarke v. Medley Moving and Storage, Inc., 885 N.E.2d 396 (Ill. App. Ct. 1st Dist. 2008)
6. Id. at p. 404
7. Id.
8. I previously contacted the Illinois Chapter of MADD to ensure they were aware of this loophole in the law, and to ascertain if they were lobbying the General Assembly to close it. The response I received asked me to forward my inquiry to the State Executive Director, Susan McKeigue. I am awaiting her response, and will update my blog if and when I receive one.
9. Id.
10. Id. at 353-354
11. Id.
12. Amicus briefs are filed with permission of the court by nonparties with strong interest in or views on the subject matter of an action. They are usually filed in very controversial cases or high-profile cases with strong public implication.


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