Punitive Damages in Illinois Wrongful Death Claims

Award-Winning Trial Attorneys In Wrongful Death Lawsuits Throughout Illinois

Punitive damages are a rare but powerful remedy: they punish defendants for especially egregious wrongdoing and deter similar conduct by others. Until recently, Illinois law generally treated punitive damages as a remedy available only to the injured person and therefore not recoverable in a wrongful-death action brought by survivors.

At John J. Malm & Associates, we dedicate our practice to helping families who have suffered the unimaginable loss of a loved one due to negligence or wrongful conduct. Based in Naperville and St. Charles, our firm represents clients throughout Illinois, including Cook, DuPage, Kane, Kendall, and Will Counties. With over 90 years of combined experience, our Illinois wrongful death lawyers have earned a reputation for skillfully handling complex wrongful death claims, navigating both the emotional and legal challenges these cases present. We understand that no amount of money can replace the life of your loved one, but we fight tirelessly to hold negligent parties accountable and secure the justice, closure, and financial support your family deserves.

“Families who have lost a loved one deserve more than condolences, they deserve accountability. When a death is caused by deliberate, reckless, or fraudulently concealed conduct, punitive damages are a tool to punish and deter. But pursuing them takes focused investigation, aggressive discovery, and experienced trial advocacy.” – John J. Malm, Naperville fatal accident attorney

The 2023 Amendment to the Wrongful Death and Survival Acts

For decades Illinois courts generally held that punitive damages did not “survive” the death of the injured person and therefore were not recoverable by heirs in a wrongful death action. In response to legislative and policy debate, the Illinois General Assembly amended the Wrongful Death Act and certain related provisions in 2023 to make punitive damages available in many wrongful death and survival actions. The statutory language now expressly states that when death is caused by a wrongful act, neglect, or default, the person or entity that would have been liable “shall be liable to an action for damages, including punitive damages when applicable.” The amendment took effect August 11, 2023, and applies to actions filed on or after that date.

When Are Punitive Damages Available in a Wrongful Death or Survival Action?

Punitive damages are not automatic. Illinois law (and the courts’ long-standing approach) limits punitive awards to cases with extreme or aggravating conduct. For example, conduct that is malicious, intentional, fraudulent, or shows a wanton or willful disregard for the safety of others. Illinois’ Pattern Jury Instructions and judicial decisions make clear that punitive damages are reserved for conduct that goes well beyond ordinary negligence. Typical fact patterns that can support punitive damages include intentional acts, deliberate deception or fraud, or grossly reckless conduct that shows “a conscious disregard” for a substantial risk of harm.

Key elements plaintiffs generally must show:

• The underlying wrongful act (the negligence, assault, product defect, etc.) proximately caused the decedent’s death; and
• The defendant’s conduct was sufficiently egregious (willful, wanton, malicious, fraudulent, or showing a conscious indifference to safety) to justify punishment and deterrence.

Standard of Proof For Punitive Damages in Wrongful Death Lawsuits

Because punitive damages punish the defendant rather than compensate the plaintiff, Illinois requires a higher standard of proof than the ordinary “preponderance of the evidence.” Courts and practice guides uniformly describe the standard for punitive damages as clear and convincing evidence that the defendant engaged in the required level of culpable conduct (willful and wanton misconduct, actual malice, deliberate oppression, etc.). In practice this means plaintiffs must present stronger, more persuasive proof (often including testimony, electronic records, internal documents, police reports, or expert analysis) to make a punitive claim submissible to the jury.

Practical example: in a drunk-driving wrongful death case, establishing punitive damages often requires proof that the driver was extremely intoxicated, had prior similar offenses, ignored license suspensions, or otherwise demonstrated conscious indifference to the safety of others beyond ordinary negligence.

How to Plead Punitive Damages in Illinois

Illinois statutes and court rules place specific procedural hurdles in front of plaintiffs who want to seek punitive damages:

• Leave of court to plead punitive damages: Under the Code of Civil Procedure, a plaintiff cannot simply include a prayer for punitive damages in the initial complaint without court approval. Instead, a plaintiff must move for leave to amend the complaint to plead punitive damages and must do so only after an evidentiary showing at a hearing demonstrating a “reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” Practitioners routinely seek leave after discovery when the plaintiff has gathered enough evidence to meet that threshold.
• Timing and discovery: Courts expect plaintiffs to make a threshold showing (at a pretrial motion hearing) before punitive damages can be pled. Some local rules or judges also set deadlines (for example, motions to plead punitive damages may be required no later than 30 days after close of discovery). Plaintiffs and counsel must plan discovery to develop the evidence needed to satisfy the “reasonable likelihood” and clear-and-convincing standards.
• Motion practice and evidentiary record: Because punitive damages can lead to insurance coverage disputes and heightened litigation stakes, defendants frequently move to strike or dismiss punitive claims early. Conversely plaintiffs must marshal documentary, testimonial, and sometimes expert proof to survive such motions.

Statutory Exceptions and Limits to Wrongful Death Punitive Damages

The 2023 amendments explicitly extend punitive damages to wrongful death and survival actions, but the statutes and existing law preserve certain exceptions and limitations:

• Healing-arts (medical) malpractice and legal malpractice exceptions: Illinois law continues to bar punitive damages in certain malpractice actions. The amendments to the Wrongful Death Act do not permit punitive damages for wrongful death claims that arise from healing-arts (medical) malpractice or legal malpractice, nor against the State or its units acting in their governmental capacity. In short: if a death results from medical malpractice, punitive damages are generally not available.
• Governmental immunity contexts: The amendments do not override immunities that protect the State or units of local government (and their employees acting within their official capacity) from punitive damage exposure in most cases. Plaintiffs should consult counsel early to evaluate applicable immunities.

Punitive Damages and Insurance Coverage

A crucial practical reality is that punitive damages often are not covered by liability insurance. Many commercial and personal liability policies contain exclusions for punitive or exemplary damages. Insurers may also attempt to avoid coverage by pointing to “intentional act” exclusions. That reality means that even a successful punitive award may create direct financial exposure for an individual defendant. For plaintiffs, a large punitive award may be symbolic and punitive, but collecting it may be more complicated if there is no insurance to satisfy the judgment.

Practical tip: plaintiffs and counsel should investigate defendant insurance policies and corporate structure early to evaluate the real likelihood of collecting punitive awards and to consider alternate targets of recovery (e.g., deep-pocket corporate defendants).

How Courts Decide Wrongful Death Punitive Damage Amounts

When plaintiffs meet the threshold and a jury finds punitive liability, courts consider a variety of factors in determining the amount:

• The degree of reprehensibility of the defendant’s conduct (intentionality, vulnerability of the victim, repeated misconduct).
• The relationship between punitive and compensatory damages. While some jurisdictions use ratios as guideposts, Illinois courts consider proportionality alongside other factors.
• The defendant’s financial condition, punishing the defendant often requires consideration of the defendant’s net worth to achieve deterrence.
• Whether the conduct involved fraud, malice, or repeated wrongdoing, which typically supports larger punitive awards.

Because punitive awards implicate constitutional due-process concerns, courts often review large awards carefully and may reduce or remit awards that exceed what the courts consider reasonable under the facts.

Building a Wrongful Death Punitive Damages Case

If a family wishes to pursue punitive damages in a wrongful death or survival action, effective strategies commonly include:

• Early and targeted discovery: Seek internal corporate emails, safety reports, personnel files, training records, and other documents that reveal conscious disregard, repeated violations, or knowledge of risk.
• Use of experts: Accident reconstruction, safety experts, or corporate governance experts can turn ambiguous facts into clear inferences of recklessness or conscious disregard.
• Developing a narrative: Jurors respond to concrete narratives, like patterns of reckless conduct, prior warnings ignored, or deliberate policy choices that created risk make punitive claims persuasive.
• Preparing for coverage fights: Anticipate that defendants and their carriers will litigate whether punitive damages are insurable and whether policy exclusions apply.
• Collection planning: If punitive exposure exists, develop a plan to identify assets and entities that could satisfy a judgment (insurance, corporate affiliates, personal assets).

Frequently Asked Questions About Punitive Damages in Illinois Wrongful Death Claims

Q: Can I sue for punitive damages if my loved one died because of medical malpractice?
A: No. Illinois law continues to exclude punitive damages in healing-arts (medical) malpractice wrongful death/survival claims. If the wrongful death action arises from medical negligence, punitive damages generally are not available.

Q: Do punitive damages replace compensatory damages?
A: No. Punitive damages are in addition to compensatory damages (medical bills, funeral expenses, lost income, grief, and pain and suffering for survivors where allowed). Their legal purpose is punishment and deterrence, not compensation.

Q: How much must I prove to get punitive damages?
A: You generally must prove by clear and convincing evidence that the defendant acted with a degree of culpability (malice, willful and wanton conduct, fraud, or gross recklessness) sufficient to justify punishment. That is a higher standard than the usual civil preponderance standard.

Q: If the defendant is a corporation, can the company be ordered to pay punitive damages?
A: Yes. Corporations can be held liable for punitive damages where the conduct of corporate officers, managers, or policies shows the requisite culpability. The corporation’s net worth and conduct will be factors the jury and court consider in setting an amount for deterrence.

Q: Will an insurance company pay punitive damages?
A: Generally, no. Many liability policies exclude punitive damages or deny coverage where the insurer can show the act was intentional and thus outside policy coverage. Coverage disputes are common in punitive cases.

Contact the Compassionate Illinois Wrongful Death Lawyers at John J. Malm & Associates

The loss of a loved one in a wrongful death case is devastating, and the pursuit of punitive damages requires an experienced trial lawyer who knows how to hold wrongdoers fully accountable. At John J. Malm & Associates, we have the knowledge, resources, and courtroom experience to stand up to negligent individuals, corporations, and insurance companies on behalf of grieving families. If you have lost someone you love due to another’s reckless or intentional conduct, you do not have to face this fight alone. Call our office today at (630) 527-4177 or fill out our online form to schedule a free, confidential consultation. Let us help you seek justice for your family and ensure that your loved one’s story is heard.