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Civil Litigation FLASHPOINTS October 2019

October 15, 2019Print This Post Print This Post

Thomas R. Pender, Cremer, Spina, Shaughnessy, Jansen + Siegert, Chicago
312-980-3015 | E-mail Thomas R. Pender

Below is an excerpt from §4.13 of WRONGFUL-DEATH AND SURVIVAL ACTIONS — 2019 EDITION.

Overview of Punitive Damages Pursuant to the Illinois Survival Statute in Wrongful-Death Cases

At common law and until 1978, punitive damage claims did not survive after the petitioner’s death under the survival statute. See Mattyasovszky v. West Towns Bus Co., 61 Ill.2d 31, 330 N.E.2d 509 (1975). However, in National Bank of Bloomington v. Norfolk & Western Ry., 73 Ill.2d 160, 383 N.E.2d 919, 923, 23 Ill.Dec. 48 (1978), the plaintiff’s claim for punitive damages was instituted pursuant to a provision of the Public Utilities Act, which provided that “if . . . the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment.” The Supreme Court allowed the survival of the punitive claim because it arose not merely from the common law but from an independent statutory source. Justice Simon gave a well-reasoned reconciliation of Mattyasovszky and National Bank of Bloomington in Froud v. Celotex Corp., 98 Ill.2d 324, 456 N.E.2d 131, 74 Ill.Dec. 629 (1983).

The Fourth District expanded on National Bank of Bloomington in Howe v. Clark Equipment Co., 104 Ill.App.3d 45, 432 N.E.2d 621, 59 Ill.Dec. 835 (4th Dist. 1982). The Howe court found that the plaintiff’s claim for punitive damages in a strict products liability case survived his death because “if statutory causes of action for punitive damages survive, by extension of logic there is no bar to similar common law causes of action.” 432 N.E.2d at 625. The next year, the Illinois Supreme Court rejected this interpretation of National Bank of Bloomington. See Froud, supra. Howe has also been criticized as bad law by several courts. See Wills v. DeKalb Area Retirement Center, 175 Ill.App.3d 833, 530 N.E.2d 1066, 1072 – 1073, 125 Ill.Dec. 657 (2d Dist. 1988); Burgess v. Clairol, Inc., 776 F.Supp. 1278, 1284 n.8 (N.D.Ill. 1991); Readel v. Vital Signs, Inc., No. 97 C 3495, 2002 WL 31177529 (N.D.Ill. Sept. 30, 2002).

In a 1985 decision, the First District interpreted these cases to permit survival of punitive damage claims “when either: (1) there exists a ‘statutory basis’ for such claims or when such claims are an ‘integral component of the regulatory scheme and of the remedy which is available under it’; or (2) ‘strong equitable considerations’ advocate survival.” Raisl v. Elwood Industries, Inc., 134 Ill.App.3d 170, 479 N.E.2d 1106, 1110, 89 Ill.Dec. 100 (1st Dist. 1985), quoting Froud, supra, 456 N.E.2d at 134 – 136. However, in a more recent decision, the First District questioned Raisl as authority for an award of punitive damages in a survival action. Marston v. Walgreen Co., 389 Ill.App.3d 337, 907 N.E.2d 851, 330 Ill.Dec. 38 (1st Dist. 2009). Marston involved a claim that the defendant was negligent in the dispensing of prescription medication. A jury awarded the plaintiff a sizeable amount for compensatory damages and $25 million in punitive damages. On appeal, the First District held that punitive damages are not recoverable in an action based on the survival statute, found no strong equitable considerations that required an exception to the rule, and pointed to the considerable award of compensatory damages as evidence that the plaintiff had an adequate remedy even without the ability to seek punitive damages. 907 N.E.2d at 857 – 858.

A year after Marston, in Vincent v. Alden-Park Strathmoor, Inc., 399 Ill.App.3d 1102, 928 N.E.2d 115, 340 Ill.Dec. 396 (2d Dist. 2010), the Second District appeared to reverse Wills, supra, on the question of the survivability of punitive damage claims brought in cases alleging willful and wanton violations of the Nursing Home Care Act. In Vincent, the court held that there is no statutory basis for punitive damages in the NHCA and no strong equitable considerations support the survival of a punitive damage claim under that statute. The Vincent court went as far as to opine that Mattyasovszky, supra, did not create an equitable consideration exception; rather, that exception was created by Illinois courts of appeal that misinterpreted Mattyasovszky and Raisl, supra.

The Illinois Supreme Court affirmed the Second District’s Vincent decision. Vincent v. Alden-Park Strathmoor, Inc., 241 Ill.2d 495, 948 N.E.2d 610, 350 Ill.Dec. 330 (2011). The Supreme Court reiterated that actions predicated on the NHCA do not abate with the death of the nursing home resident; however, the right of the resident to recover punitive damages abates upon the death because the NHCA does not incorporate a provision authorizing the recovery of punitive damages. 948 N.E.2d at 615 – 616. The court also held that, for a punitive damage claim to survive, the award of such damages must be expressly authorized by the statute on which the cause of action is predicated. If punitive damages are not specifically authorized under the statute, any claim for punitive damages will die with the injured person. Id.

Although the Public Utilities Act is usually at issue in these cases, exemplary damage claims have similarly been held to survive in federal civil rights actions pursuant to 42 U.S.C. §1983 (Larson v. Wind, 542 F.Supp. 25 (N.D.Ill. 1982)) and the Consumer Fraud and Deceptive Business Practices Act (People ex rel. Fahner v. Testa, 112 Ill.App.3d 834, 445 N.E.2d 1249, 68 Ill.Dec. 396 (1st Dist. 1983)). Cf. Duncavage v. Allen, 147 Ill.App.3d 88, 497 N.E.2d 433, 100 Ill.Dec. 455 (1st Dist. 1986) (holding that Consumer Fraud Act does not expressly authorize punitive damages and thereby distinguishing Froud, supra).

The survival statute has also been cited as a basis for the recovery of punitive damages against a deceased defendant’s estate based on the strong public policy against drunk driving, the criminality of the decedent’s conduct, and the deterrent effect on other drivers. Penberthy v. Price, 281 Ill.App.3d 16, 666 N.E.2d 352, 216 Ill.Dec. 902 (5th Dist. 1996). Cf. Hahn v. Garrison, No. 13 C 3778, 2014 WL 6982662 (N.D.Ill. Dec. 9, 2014). However, the U.S. District Court for the Northern District of Illinois has predicted that Illinois’ highest court will follow the majority of states and hold that a claim for punitive damages under the survival statute does not survive the death of the defendant who committed the alleged acts. Stafford v. Purofied Down Products Corp., 801 F.Supp. 130 (N.D.Ill. 1992).

For more information about financial services, see WRONGFUL-DEATH AND SURVIVAL ACTIONS — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


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