No Parent Should Have to Bury a Child
The death of a child is the most painful loss a family can endure. When that death was caused by someone else’s negligence, the grief is mixed with anger, confusion, and a need for answers. Illinois law recognizes this and gives parents the right to hold the responsible party accountable through a wrongful death claim.
While no lawsuit can bring a child back, it can provide financial stability for the family and ensure the person or company responsible faces consequences.
Who Can File a Wrongful Death Claim for a Child?
Under the Illinois Wrongful Death Act, the personal representative of the child’s estate files the lawsuit. This is usually one of the parents or someone appointed by the court.
The claim is filed on behalf of the child’s next of kin, which typically includes:
- Both parents
- Siblings of the deceased child
- Other dependents or next of kin
Both parents have the right to recover damages, even if they are divorced or were never married. The court will determine how the damages are distributed based on each parent’s relationship with the child.
For more details, see our guide on who can file a wrongful death lawsuit in Illinois.
Common Causes of Wrongful Death in Children
Children die from negligence in many different circumstances. Some of the most common situations that lead to wrongful death claims for children in Illinois include:
Car Accidents
Car accidents are a leading cause of death for children in the United States. A child may be killed as a passenger, a pedestrian, or a bicyclist. Negligent drivers, defective car seats, and inadequate school bus safety can all contribute to fatal crashes.
Medical Malpractice
Children are particularly vulnerable to medical errors. Misdiagnosis of childhood illnesses, medication dosing errors, surgical mistakes, and birth injuries can all result in death. Pediatric malpractice cases require expert testimony from specialists who understand the unique aspects of treating children.
Drowning
Drowning is a leading cause of death for young children. Inadequate supervision at public pools, unfenced private pools, daycare negligence, and defective pool drains can all lead to fatal drownings. Property owners and childcare providers have a legal duty to protect children from drowning hazards.
Daycare and School Negligence
When parents leave their children in the care of a daycare, school, or other facility, those providers have a duty to keep the children safe. Deaths from choking, allergic reactions, playground accidents, and abuse at childcare facilities can support wrongful death claims.
Defective Products
Toys, cribs, car seats, and other products designed for children sometimes have dangerous defects. Choking hazards, toxic materials, flammable fabrics, and structural failures have all caused child deaths. The manufacturer, distributor, and retailer can all be held liable under Illinois product liability law.
Dog Attacks
Young children are at the highest risk for fatal dog attacks. Illinois has strict liability laws for dog bites, meaning the owner is responsible regardless of whether the dog had shown aggression before.
Damages in a Child Wrongful Death Case
Calculating damages for the wrongful death of a child is different from an adult case. A child typically does not have an earnings history, and the financial dependency runs in the opposite direction. But Illinois law still allows substantial recovery.
Loss of Society and Companionship
This is usually the largest component of damages in a child wrongful death case. Parents can recover for the loss of their child’s love, companionship, comfort, and the relationship they expected to have for the rest of their lives. This includes the loss of watching the child grow up, graduate, start a career, and have their own family.
Siblings can also recover for loss of society if they had a close relationship with the deceased child.
Grief and Mental Suffering
Illinois allows parents to recover for the grief, sorrow, and mental anguish caused by the death. Losing a child causes profound psychological harm that can last a lifetime. This damage recognizes that reality.
Lost Future Earnings
Even though a child has no current income, economists can project what the child would likely have earned over their lifetime based on factors like the parents’ education and income levels, the child’s academic performance, and statistical averages. This is a more speculative calculation than for an adult, but it is still a recognized category of damages.
Medical Expenses
If the child received medical treatment before dying, those costs are recoverable. This is typically pursued through a companion survival action.
Funeral and Burial Costs
The cost of the funeral and burial is recoverable.
The Challenge of Valuing a Child’s Life
One of the most difficult aspects of a child wrongful death case is putting a dollar value on the loss. Defense attorneys and insurance companies sometimes argue that because a child does not earn income and the parents were supporting the child (not the other way around), the economic damages are minimal.
This argument ignores the reality of what parents lose. The non-economic damages in a child wrongful death case are often very large because the loss of society and companionship is so profound. Illinois juries understand this. Cases involving the death of a child often result in significant verdicts.
An experienced attorney will know how to present the full impact of the loss to a jury, including testimony from family members, grief counselors, and other experts.
Birth Injuries That Cause Death
Some child wrongful death claims arise from injuries that occur during pregnancy or delivery. These cases involve medical malpractice and can include:
- Failure to monitor fetal distress during labor
- Delayed emergency cesarean section
- Improper use of forceps or vacuum extractors
- Failure to diagnose and treat maternal infections
- Medication errors during pregnancy or delivery
- Oxygen deprivation leading to brain injury and death
Birth injury cases are medically complex and require expert testimony from obstetricians, neonatologists, and other specialists.
Statute of Limitations
The general statute of limitations for a wrongful death claim in Illinois is two years from the date of death. This applies to cases involving the death of a child as well.
However, if the death resulted from medical malpractice, there are additional rules about when the clock starts running and how long the family has to file. For medical malpractice involving a minor, the deadlines may be different than for adults.
Do not assume you have more time than you do. Consult with an attorney promptly. For more information, read our guide on the Illinois wrongful death statute of limitations.
Criminal vs. Civil Cases
If the person who caused your child’s death is facing criminal charges, the criminal case and the civil wrongful death case are separate. The criminal case is prosecuted by the state. The civil case is filed by your family.
You do not need a criminal conviction to win a wrongful death case. The burden of proof in civil court is lower. Even if criminal charges are dropped or the defendant is acquitted, you can still pursue a civil claim and win.
Emotional Toll on the Family
Pursuing a wrongful death claim after losing a child is emotionally difficult. You will be asked to talk about your child, your relationship, and your grief. Depositions and trial testimony can be painful.
A good wrongful death attorney understands this. They will handle the legal work, deal with the insurance companies, and protect you from unnecessary stress. They will prepare you for what to expect and support you throughout the process.
Many families find that pursuing the case gives them a sense of purpose and helps ensure that what happened to their child does not happen to someone else’s.
Take Action to Protect Your Family’s Rights
If your child died because of someone else’s negligence, you have the right to hold them accountable. A wrongful death claim can provide your family with financial support and the justice your child deserves.
The legal deadlines are strict, and evidence needs to be preserved early. Do not wait to explore your options.
Call Phillips Law Offices at (312) 346-4262 or contact us online at /contact/ for a free consultation.