Gregory J. Barry

Thursday, March 9th, 2017

Illinois Appellate Court Issues Opinion Concerning Candidates Signing Nominating Petitions

Thanks to a recent appellate court decision, candidates for local office can be sure that their nomination papers will not be invalidated if the candidate later signs petitions for members of another political party. In this recent case, the Fourth District held that the only legal consequence in such a scenario would be invalidating the more recent signatures, leaving the candidate’s signature on her own petition as valid.

The Schmidt v. Illinois State Board of Education case presented a common situation in local politics, but with a twist. A Democratic candidate for the office of state Representative signed her nomination papers and then signed multiple petitions for candidates for other positions. One such petition was for a Republican candidate for county Recorder. A concerned citizen filed an objection with the election board, claiming that the Election Code prevents candidates of one party from signing petitions for candidates of other political parties.

As the appellate court recognized, the relevant statute is straightforward: It requires the candidate to state that he or she is “a qualified primary voter of the party to which the petition relates” and further that “[a] ‘qualified primary elector’ of a party may not sign petitions for or be a candidate in the primary of more than one party.”

The appellate court based its decision on the opinion in Watkins v. Burke. In that case, the court held that while the statute prohibited signing petitions of different parties, the consequence of a violation was not the striking of any name appearing on petitions for multiple parties. Rather, once someone signed the petition of one party, binding them to that party, their signatures afterward on another party’s petitions would be stricken.

The difference between Watkins and the recent decision in Schmidt was that the candidate’s entire petition was at issue since it depended on a valid statement of candidacy. The Fourth District held that just like in Watkins, what mattered was how the candidate had first aligned herself. Since the first paper she signed was her own statement of candidacy as a Democrat, the statement was true at the time because she had not yet signed any Republican petitions.

However, when she signed the Republican petition, she was not eligible to sign it because she had already aligned herself with the Democratic party through her statement of candidacy. Thus, consistent with Watkins, her nomination papers and her signature on the earlier Democratic petitions were valid. Her signature was only stricken as to the Republican petition.

The court explained the theory behind its interpretation of the statute. In sum, the prohibition against signing petitions for multiple parties exists to prevent political gamesmanship. Candidates cannot pump up the petitions of political opponents whom they deem to be weak in the hope of securing an easier contest in the general election. The prohibition was not intended to be punitive and disqualify an otherwise eligible candidate. Rather, the prohibition was intended to prevent cross-party petition signing.

Candidates for local office should, of course, be careful to sign their own petitions first. They should still sign only petitions for other candidates aligned with their party. However, candidates can now take comfort that inadvertently signing another petition after their own statement of candidacy will not invalidate their own petition, even if the other petition relates to a different political party.

Gregory J. Barry

Author: Gregory J. Barry

Wednesday, September 10th, 2014

Update: Appellate Court Confirms School Districts Subject to Home-Rule Zoning

In an earlier issue, we wrote about the dispute between the City of Crystal Lake and Community High School District No. 155 as to whether the District’s construction of bleachers was subject to the City’s zoning process.  The City prevailed on summary judgment before Judge Chmiel of the McHenry County Circuit Court, and the District appealed.  On September 3, the Second District Appellate Court issued its opinion in Gurba v. Community High School Dist. No. 155, which affirmed the trial court’s ruling in favor of the City.

The appellate court recognized that there is no direct authority on the relative power of school districts versus municipal zoning ordinances.  It cited two primary bases as to why school districts are subject to the zoning power of home-rule municipalities: the Illinois Constitution and the “Zoning Change Provision” of the School Code.

As to the Constitution, the court held that regulatory power tilts toward home-rule municipalities and away from school districts when they come into conflict.  Home-rule municipalities are given plenary authority over their government and affairs, and this constitutional power can only be limited by an explicit statutory restriction.  School districts, however, have no inherent constitutional authority.  Their power comes entirely from the state statutes.  Additionally, as the court noted, home-rule municipal ordinances will trump home-rule county ordinances when the two come into conflict.  The court observed that not only are school districts not home rule, but they are on the lowest tier of public entities, not being included in the constitutional definition of either “municipalities” or “local governments.”

More persuasive than the constitutional analysis, perhaps, is the court’s discussion of the “Zoning Change Provision” in the School Code, 105 ILCS 5/10-22.13a.  The Zoning Change Provision is part of a list of powers granted to school districts, and it gives them the power “[t]o seek zoning changes, variations, or special uses for property held or controlled by the school district.”  The court held that this statute would be meaningless if school districts were not subject to municipal zoning ordinances.  The court also noted that because no other zoning-related power was granted to school districts, they do not have any authority to make zoning changes on their own, but rather must follow municipal zoning procedures.

Ultimately, the court held that a school’s mission of providing education is completely compatible with a municipality’s powers over zoning and land use.  A school district may be charged with providing public education, but that mission does not conflict with or absolve it from following a zoning ordinance.  The court did note that schools are exempt from municipal health and safety codes, and have jurisdiction over those issues on their own property, but held that zoning and land use ordinances are different.

The court did not address whether its opinion would apply to non-home rule municipalities and their zoning ordinances.  However, both the constitutional and statutory (Zoning Change Provision) holdings seem to be independent bases for establishing the primacy of zoning ordinances.  The constitutional argument applies only to home-rule ordinances, but the statutory argument applies to any municipal zoning ordinance.  In its discussion of the Zoning Change Provision, the court approved of a recent Attorney General opinion (2011 Ill. Att’y Gen. Op. No. 11-005) stating that school districts are subject to municipal and county zoning ordinances unless the ordinance conflicts with the actual providing of public education.  Given that the Attorney General’s opinion did not discuss home rule, it seems likely that the appellate court’s holding applies to both home rule and non-home rule municipalities alike.

After the opinion was released, the City issued an ultimatum to the School District to start zoning proceedings by Oct. 16 or face enforcement.  See “Crystal Lake increases pressure on D-155 officials to enter zoning for bleachers,” Northwest Herald, Sept. 8, 2014.  The School District still has time to petition for review by the Illinois Supreme Court, but it may have to face consequences with the City while awaiting word from the Supreme Court.  We will send further updates on this case as developments warrant.

Gregory J. Barry

Author: Gregory J. Barry

Wednesday, July 30th, 2014

Seventh Circuit Divided on Municipal Booking and Bail Fees

We have previously reported on administrative tow fees which police departments are entitled to charge by statute.  Municipal police departments are also able to obtain restitution for responding to emergencies caused by drunk drivers.  In a similar attempt to recoup money for its police department, the Village of Woodridge recently imposed a $30 “booking fee” to be charged to any arrestee “when posting bail or bond on any legal process, civil or criminal, or any custodial arrest including warrant.”

Jerry Markadonatos was charged with shoplifting in Woodridge and was charged the booking fee.  He was bailed out of the village jail the same day and subsequently pleaded guilty to shoplifting.  He challenged the booking fee in federal court, contending that it was unconstitutional to charge a $30 booking fee to everyone arrested by the Village. The trial court found that the fee was valid as to Markadonatos because “it is rational to share the costs of incarceration with those who through their actions necessitate that those costs be incurred.”  The court further found that Markadonatos could not challenge the constitutionality of the booking fee as to persons never convicted or arrested without probable cause because he pled guilty.

A three judge panel of the Seventh Circuit filed three separate opinions but affirmed the trial court’s decision in Markadonatos v. Village of Woodridge.  The plaintiff requested a hearing before the full Circuit, and the Village quietly repealed the booking fee ordinance. The opinions expressed by the full Seventh Circuit are somewhat disjointed and do not provide clear guidance.  Five judges voted to affirm the trial court’s decision (albeit for different reasons), one wanted to require dismissal outright, and four wanted to reverse the trial court resulting in a 5-5 split and the trial court’s holding remaining intact. While each group of the judges took a different position on the fees, there were some common threads that will likely govern future resolution of these cases.  Most of the judges who voted to uphold the “booking fee” did so on the basis that it could be interpreted as a “bail fee.”  A majority of all the judges expressed doubt that a non-refundable fee charged upon arrest would be valid.  However, a majority also suggested that a refundable booking fee may be valid.  All judges seemed to agree that a fee for posting bail, in an amount reasonably related to the costs of processing bail, would be constitutional.

Thus, there are a few valuable takeaways from Woodridge:

  • Non-refundable booking fees charged to all arrestees are almost certainly unconstitutional, since the arrestee is deprived of property without any process to later challenge the fee.
  • Refundable booking fees charged to all arrestees may be valid.  At minimum, the arrestee would need to have a fair opportunity to challenge the arrest (and therefore the fee), similar to an administrative hearing to challenge impound fees.
  • Fees are almost certainly valid if they are charged only to those arrestees who choose to post bail, so long as the fee is reasonably related to the cost of processing bail.  A study referenced in the Woodridge cases found that the cost in DuPage County for processing bond was about $45 per occurrence, and the Village charged $30.

Finally, any booking or bail fee must be clearly drafted with constitutional safeguards in mind.  Now that the Woodridge case has given guidance to civil rights attorneys on how to properly develop their case, municipalities should expect that incorrectly applied or drafted booking or bail fee ordinances could be met with litigation and possibly class action suits.

Gregory J. Barry Author: Gregory J. Barry

Tuesday, March 18th, 2014

Bill to Make School Districts Subject to Municipal Zoning

On Jan. 21, 2014, State Senator Pamela Althoff introduced a bill (SB 2647) to make school districts subject to municipal zoning ordinances.  Senate Bill 2647 would amend section 10-22.13a of the School Code (105 ILCS 5/10-22.13a) and reads in relevant part as follows:

A school district is subject to and its school board must comply with any valid local government zoning ordinance or resolution that applies where the pertinent part of the school district is located. The changes to this Section made by this amendatory Act of the 98th General Assembly are declarative of existing law and do not change the substantive operation of this Section.

Whether school districts are subject to municipal zoning ordinances is a matter of longstanding debate.  This issue came to a head recently with litigation between the City of Crystal Lake and Community High School District 155, in McHenry County, regarding the District’s construction of bleachers near the backyards of some Crystal Lake residents.  Judge Michael Chmiel ruled on Dec. 18, 2013, that the District was subject to the City’s zoning and building regulations, and was required to go through the City’s planning processes before it could construct the bleachers.

The District filed a notice of appeal and as such the judgment is not yet final.  An appellate decision would leave several open questions as to what types of school construction are subject to what kinds of regulation from what kinds of municipalities.  For example, Judge Chmiel’s decision cited the City’s home rule status, and if the decision is affirmed on all counts, non-home rule municipalities may not have the same authority over school districts.

Senate Bill 2647 would make for a clearer division of authority.  It states without exception that school districts and school boards are subject to all valid local government zoning ordinances which may apply to the school district’s land.  By stating that it is “declaratory of existing law,” SB 2647 would likely apply retroactively and provide other aggrieved municipalities with a remedy against school district construction that did not comply with the applicable zoning regulations -— subject, of course, to statutes of limitations and possible hardships and vested rights.

The bill unanimously passed the Education Committee on Feb. 26, 2014, and is currently scheduled for its third reading in the Senate.  ZRFM will keep you updated as this bill progresses through the legislature.

Gregory J. Barry

Author: Gregory J. Barry

Wednesday, June 26th, 2013

Trademarking Your Town

We have all seen them around: NYPD hats, miniature Chicago flags, replica “Bourbon Street” signs, the “What happens in Vegas” shirts. Branding is a vital aspect of tourism in many large cities, with merchandising providing a modest income stream. But smaller local governments may also realize the benefits of distinguishing their local identity, for purposes of attracting higher-end development to encouraging shoppers to support local businesses. Consider a small-town sports team winning the state championship in Hoosiers-like fashion (Metro-Goldwyn-Mayer Studios Inc., 1986). Unfortunately, many well-intentioned branding efforts can be derailed by a failure to maximize the benefits available to municipalities under trademark law.

The primary reason to seek trademark protection for municipal logos, slogans, and other distinctive marks is to control the use of those marks. For example, the City of Crystal Lake might not want unauthorized retailers to claim that they participate in the “I Shop Crystal Lake” retail program. Registering slogans, such as Crystal Lake’s, as trademarks provides  local governments a wide range of remedies against any unauthorized use of their slogan.

Both federal and Illinois law govern which municipal trappings can and cannot be trademarked. Flags and certain insignia, such as city seals, cannot be registered trademarks. Park Ridge, for example, tried unsuccessfully to restrict the unauthorized use of its official flag and seal. On the other hand, logos and badges pertaining to governmental departments (those NYPD hats) or particular services or institutions (zoos, museums, etc.) can be protected. The names of cities and villages can be used freely by the public, much to the delight of car dealerships such as Arlington KIA and Bull Valley Ford, neither of which is located in the municipality implied by the name. However, slogans, ranging from official city slogans to tourism and retail campaigns (“What happens in Vegas”) and public-service programs can be trademarked. Finally, municipal designs which do not rise to the level of official insignia can be protected. One example of this is Lincolnshire’s distinctive capital “L” design, which was registered as a trademark five years ago.

Without trademark registration, municipalities can lose control over the slogans, logos, and designs which form the “brand” of the town. It is far more difficult to prevent unauthorized use of local brands without trademark protection, and the longer a mark is used without being protected, the more it becomes the property of the public at large.  Municipalities that have spent significant efforts to brand and market their communities should evaluate their distinctive marks and consider trademark registration. Of course, legal counsel is available to ensure your local government is properly and effectively benefiting from its brand.

Gregory J. Barry

Author: Gregory J. Barry

Tuesday, January 29th, 2013

Awards & Recognitions

Local Government Award:

  • The City of Harvard received the 2012 Governor’s Hometown Award for its support and service to the Harvard Community Center and Food Pantry. Congratulations to the City of Harvard for this prestigious recognition.

ZRFM Attorney Updates:

  • Rich Flood was named one of the Top Ten Suburban Real Estate Related Lawyers by the Leading Lawyers Network. Rich was also named a Super Lawyer by his peers for the ninth consecutive year, which is as long as the designation has existed.
  • Carlos S. Arévalo recently joined the board of directors at Mercy Harvard Hospital.
  • Ryan Farrell became a director of the Centegra Health Systems Foundation Board in December 2012.
  • The McHenry County Historical Society welcomed Greg Barry to its board of directors in 2012.
  • Timothy (T.J.) Clifton was named chair of the Community Leadership Board of Big Brothers Big Sisters of McHenry County.
  • The Community Action Agency recently added Bill Westfall to its board of directors.
Wednesday, January 18th, 2012

Wakeman, Barry Write on Pursuing Wrongful Death Grief Claims

Illinois Bar Journal Elizabeth Felt Wakeman

Pursuing Claims for Grief Under the Revised Wrongful Death Act

Editor’s Note: This article was subsequently published in the January 2013 issue of the Illinois Bar Journal.

Written by:

Elizabeth Felt Wakeman, Gregory J. Barry
Zukowski, Rogers, Flood & McArdle, Crystal Lake, IL


Juries are now permitted to consider grief, sorrow, and mental suffering in wrongful death cases. Maximizing (or minimizing) this new aspect of a claim requires consideration of the impact of the new law at each stage of the trial.

Until recently, wrongful death claims for grief, sorrow or mental suffering incurred by next of kin were not recognized in Illinois. Next of kin were limited to pursuing pecuniary claims based on their relationship with the deceased such as loss of society or support. However, that all changed in 2007 when the Wrongful Death Act (740 ILCS 180/2) (“Act”) was amended by the Illinois legislature. The legislature’s revision now specifically allows next of kin to seek damages for the “grief, sorrow and mental suffering” that they have incurred as a result of the wrongful death. This article will examine the ramifications of this new and significant development for wrongful death claims, including the mechanics of navigating such a claim from the perspective of a plaintiff’s attorney.

Our firsthand experience with the new law stems from a January 2011 trial where our firm represented a young boy in the wrongful death of his father in a motorcycle collision that occurred within months of the amendment to the Wrongful Death Act. The jury returned a verdict in the boy’s favor, notably including $100,000 as a separate line item of damages for the boy’s grief, sorrow and mental suffering. This verdict is the first reported jury award for grief, sorrow and mental suffering under the revised Wrongful Death Act.

I. Grief, Sorrow, and Mental Suffering – Added by Public Act 95-3

Section 2 of the Act prior to the 2007 revision did not explicitly permit damages for grief, sorrow, and mental suffering. Rather, it permitted damages that would be “a just and fair compensation with reference to the pecuniary injuries suffered resulting from [the] death.” 740 ILCS 180/2 (2006). Longstanding case law, however, held that grief, sorrow, and mental suffering were not to be considered in determining this “just and fair compensation.”[1] This was reflected in the Pattern Jury Instructions as well. See IPI Civ 3d No 31.07 (2011).

Public Act 95–3, effective on May 31, 2007, clarified Section 2 to provide that: “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.” 740 ILCS 180/2 (emphasis added on language added by PA 95–3). This was the sole substantive change in the law effected by the public act — only Section 2 of the Wrongful Death Act was changed, and the other changes were merely to clarify the statute and to specify the prospective application of PA 95–3.

II. Legislative History

While there is as of yet no case law to clarify the impact of the “grief, sorrow, and mental suffering” aspects of damages in wrongful death claims, there was substantial debate in the legislative chambers prior to the passage of PA 95–3. Without repeating the floor debates verbatim, the following principles can be gleaned as to the understanding of the legislators – both those who supported and those who opposed the bill — of the construction, application, and practical effect of the bill:[2]

  • PA 95–3 only alters the issues to be considered in awarding damages, and not standing, damage caps, or other issues;
  • The jury will be able to consider grief, sorrow, and mental suffering;
  • Attorneys will be able to present evidence and argument on those issues;
  • Jury instructions will be revised to either provide one line item for the new elements or separate, new lines for each element;
  • Verdict forms will have either one new line item or separate new line items as contemplated for the jury instructions;
  • “Grief, sorrow, and mental suffering” are separate and distinct from other pecuniary damages under the Wrongful Death Act (and are capped, non-economic damages under the Medical Malpractice Act);
  • “Grief, sorrow, and mental suffering” are different from loss of society;
  • The new terms will remain undefined and will be determined by effective advocacy at trial.

III. Jury Instructions

As predicted by the various legislators, the pattern jury instructions have been revised to reflect the statutory amendment. Instruction 31.01 lists “[t]he grief, sorrow, and mental suffering of [next of kin]” as distinct consideration in determining pecuniary loss. IPI Civ 3d No 31.01 (2011 ed). The comment to Instruction 31.01 reads: “Item 9 is a new addition to the instruction. Its inclusion is based on the 2007 amendment to the Wrongful Death Act, 740 ILCS 180/2. That amendment (PA 95–3) permits the recovery of damages for grief, sorrow, and mental suffering of the next of kin.” Similar revisions to the instructions and notes in the commentary are found in Instructions 31.01(a), 31.02, 31.02(a), 31.03, 31.03(a), 31.04, 31.05, and 31.06.

Even when PA 95–3 has not resulted in an alteration of the Illinois Pattern Jury Instructions, its presence is still significant. Paragraph 2 of the current version of Instruction 31.07 (“Measure of Damages—Wrongful Death—Factors Excluded”) continues to direct the jury not to consider “[t]he grief or sorrow of the next of kin.” However, the Notes on Use state: “For causes of action that accrue after May 31, 2007, paragraph 2 should be deleted from this Instruction. Under PA 95–3, effective May 31, 2007, next of kin may recover damages for their grief, sorrow and mental suffering.” Thus, Instruction 31.07 will only direct the jury not to consider the decedent’s pain and suffering and the next of kin’s poverty or wealth.

Finally, the Notes on Use in the above Instructions require Instruction 31.11, “Damages—Loss of Society—Definition” to be used whenever loss of society is claimed. Instruction 31.11 defines “loss of society” as “the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” This is the current definition under the 2011 edition of the Illinois Pattern Jury Instructions, and as such, the editors consciously omitted “grief, sorrow, and mental suffering” from the definition of loss of society. This presents a strong argument that “loss of society” and “grief, sorrow, and mental suffering” are to be separate areas of recovery in jury awards, and that grief, sorrow and mental suffering are not subsumed into loss of society.

Because the pattern jury instructions have already been changed to reflect the amendment to the Wrongful Death Act, counsel for plaintiffs should be comfortable submitting the Instructions for consideration. Counsel for defendants will have an uphill climb trying to block use of the Instructions, especially since grief, sorrow, and mental suffering are enshrined in the Act as matters for the jury to consider in awarding damages.

A. Pattern Verdict Forms

While the Illinois Pattern Jury Instructions contains specific directions on jury instructions, including with regard to grief, sorrow and mental suffering in Wrongful Death Act cases, its verdict forms are far more general. This holds true for the verdict forms that may be used in wrongful death cases. For example, see Instruction B45.01 (“Verdict Form A—Single Plaintiff and Defendant—No Contributory Negligence Pleaded”). The entire form reads:


We, the jury, find for plaintiff’s name and against defendant’s name. We assess the damages in the sum of, [itemized as follows:]

[Signature Lines]

At trial, practitioners should expect a dispute on how the categories of damages should be “itemized as follows” on the submitted verdict form. Expect defense counsel’s argument to be that since the pattern jury instructions verdict forms do not provide for a separate line item for grief, sorrow and mental suffering, and that the jury instructions do take those items into account, that the verdict form should be left as is. Plaintiffs’ counsel, in response, would likely refer the court to Instruction 31.06 and the related instructions, which specifically reference grief, sorrow and mental suffering as a measure of damages as elaborated upon in the notes and comments. Plaintiffs’ counsel may also point out that the next of kin’s grief, sorrow and mental suffering is clearly separate in nature from loss of society, in that Instruction 31.11 defines society as “the mutual benefits that each family member receives from the others continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” That definition makes no reference to personal grief, sorrow and mental suffering of the next of kin and remains unchanged after the amendment to the wrongful death statute in 2007, which allowed for damages for grief, sorrow and mental suffering. If such claims were really a part of loss of society, then there should have been a change in the IPI definition of society to reflect that change.

B. Arguing the Legislative History

Finally, counsel for plaintiffs should be prepared to argue the legislative history of Public Act 95–3 to show that the verdict forms should contain a separate line item for grief, sorrow, and mental suffering. As the floor debates show, the proponents clarified that the purpose of the bill was to allow the jury to consider grief, sorrow and mental suffering in formulating its award, and that those categories are now “a new area where a plaintiff can recover.”[3] The opponents of the bill acknowledged that grief, sorrow, and mental suffering would be a separate item in the jury instructions – indeed, that was one of their primary objections.[4] Further debate that same day suggests that grief, sorrow and mental suffering would be combined into a single, new line item rather than separate line items in the instructions.[5]

The bill’s opponents also recognized that those new elements would also be a separate line item in verdict forms, which for them was a significant detriment, as shown by the following statement from Representative Winters:

“The Sponsor has mentioned in debate that this is adding a new area of recovery in this state. It’s a new area of recovery in jury cases. There’s going to be a new line on the jury form that will – after you’ve looked at the other recovery that you can get for deprivation of love, care, comfort, protection, guidance, advice, and affection of the deceased, there will be a new line for grief and sorrow . . . And believe me, if there’s an empty line with a figure to be filled in, the juries will be filling it in.”[6]

These comments as to the jury verdict form were not contradicted or opposed by Representative Brosnahan, the bill’s sponsor, whom Representative Winters was addressing in part of his statement above. If the bill’s intent was not to create a new line item, one would think that the bill’s sponsor would clarify that rather than remaining silent when questioned on that point. This “exchange” between Representatives Winters and Brosnahan makes a strong case for legislative intent to have a separate line item on the verdict form, even though it is in the context of a practical argument as to why there should be no new line item.

The Senate debate followed the same pattern: an opponent of the bill stated that the verdict form would have a separate line item, followed by proponents who demur on the verdict-form issue.[7] Both sides in both legislative chambers therefore understood that the bill, if passed, would change verdict forms to include a separate line item for grief, sorrow, and mental suffering. There is some legislative history suggesting that grief, sorrow, and mental suffering might have their own, separate line items, although the current pattern jury instructions suggest that those three elements should be considered together. Plaintiff’s counsel will have to decide whether to take the safe option of asking for one line item to cover all three elements or asking for separate line items for each. The latter option may require counsel to indicate how grief, sorrow, and mental suffering are to be distinguished among them.

IV. Motions in Limine

In addition to fighting the claim for grief, sorrow and mental suffering as a separate line item of damages, defense counsel will likely attempt to limit those damages through motions in limine designed to bar testimony related to that claim. For example, in our case, defense counsel filed a motion in limine requesting that we be barred from introducing any evidence of grief, sorrow and mental suffering except through testimony of the next-of-kin. Plaintiff’s counsel should respond by showing how PA 95–3 clearly puts grief, sorrow, and mental suffering at issue in the case. There is nothing in the statute, legislative history, or pattern jury instructions which remotely suggests that only the next-of-kin is competent to testify on the issues of grief, sorrow, and mental suffering. While lay witnesses may not be able to testify with certitude that the claimant actually suffered grief, sorrow, and mental suffering as specific conditions, there is nothing in the law preventing their testifying as to facts from which the jury could infer grief, sorrow, and mental suffering. Ultimately, the judge in our case allowed our lay witnesses to provide testimony that evidenced our client’s grief, sorrow and mental suffering without using those actual words. The motion was denied in its entirety as to our expert witness, a retained psychiatrist.

V. Strategic Considerations in Presenting Evidence

As noted above, a judge may decide a motion in limine regarding grief, sorrow and mental suffering by preventing lay witnesses (other than the next-of-kin) from using the specific words “grief,” “sorrow,” and “mental suffering” but allowing their testimony as to facts relating to those elements, while allowing the claimant and any qualified expert witnesses to testifying as to the actual grief, sorrow, and mental suffering experienced by the next-of-kin. While there are several approaches to the content of testimony presented and the order of witnesses, one approach for plaintiffs’ counsel that may prove effective is leading with testimony from several friends, family members, and acquaintances of the claimant to provide several different glosses on the central issue of your client’s mental suffering. This can be followed by putting an expert psychiatrist on the stand to give context — the specific mental condition of grief, sorrow, and mental suffering — to the anecdotes and observations of the lay witnesses. Finally, once the jury has been fully prepared emotionally, testimony from the next-of-kin as to his or her personal grief and sorrow can prove particularly effective.

VI. Settlement Value

Another strategic issue raised by the amendment to the Wrongful Death Act is how much, if at all, the value of wrongful death claims are increased for settlement and trial purposes, and, relatedly, how much energy should be devoted in pursuing the “grief, sorrow, and mental suffering” aspect of the greater wrongful death claim. The value given to such claims by defense counsel and their clients is sure to vary from one insurance company to the next. Until sufficient precedent has been established through trials establishing that there is indeed a monetary value to these claims separate and apart from other aspects of wrongful death claims, practitioners should anticipate that insurance companies will not place a high value on the “grief, sorrow, and mental suffering” elements. Thus, for the time being, if plaintiffs’ counsels wish to make grief, sorrow and mental suffering claims a significant element of a wrongful death case, they need to be prepared to try the case and prove up that element of damages. Our experience suggests that this strategy is well worth pursuing. Ultimately, we received a jury verdict of over $600,000, which included an award of $100,000 for our client’s grief, sorrow and mental suffering. This was significantly higher than defendant’s last settlement offer of $450,000. This was the second highest recorded jury verdict ever for a wrongful death case in McHenry County, and suggests that future jury awards for grief, sorrow and mental suffering in less conservative counties (for example Cook County) could indeed be significant.

VII. Conclusion

While the Wrongful Death Act was amended more than four years ago to permit grief, sorrow, and mental suffering to be considered, there is still little guidance in the law as to the impact of the amendment on planning and conducting wrongful death trials. Practitioners should familiarize themselves with the amended jury instructions and be prepared to use legislative history and cases from other jurisdictions to argue for the optimal verdict form and for or against inevitable motions in limine, as appropriate. Solid preparation and effective argument can alleviate the grief and mental suffering that practitioners may encounter in litigating this new aspect of wrongful death claims.

Elizabeth Felt Wakeman ( has tried many personal injury and medical malpractice cases to verdict and is a partner with Zukowski, Rogers, Flood & McArdle. Gregory J. Barry ( is an associate with Zukowski, Rogers, Flood & McArdle.

[1] See, for example, Uhr v. Lutheran General Hosp., 226 Ill App 3d 236, 589 NE2d 723 (1st Dist 1992), appeal allowed 145 Ill2d 645, 596 NE2d 638 (1992), vacated, ordered not precedential 244 Ill App 3d 289, 614 NE2d 319 (1st Dist 1993); Seef. v. Sutkus, 205 Ill App 3d 312, 562 NE2d 606 (1st Dist 1990), affirmed, 145 Ill 2d 336, 583 NE2d 510 (1991); Zostautas v. St. Anthony de Padua Hospital, 23 Ill2d 236, 177 NE2d 825 (1961); Webb v. Henke, 10 Ill App 2d 152, 134 NE2d 540 (4th Dist 1956); see also Brackett v. Builders Lumber Co. of Decatur, Ill., 253 Ill App 107, 1929 WL 3244 (3rd Dist 1929); Conant v. Griffin, 48 Ill 410, 1868 WL 5132 (1868); and City of Chicago v. Major, 18 Ill 349, 1857 WL 5582 (1857).

[2] See 95th Gen Assem, House of Reps, Transcript of 41st Legislative Day, April 24, 2007, pp 76–77; 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, pp 40–45, 53–54, 57, 60–61; 95th Gen Assem, Regular Session Senate Transcript of 41st Legislative Day, May 17, 2007, pp 36–38.

[3] 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, p 40 (Rep Brosnahan); see also 95th Gen Assem, House of Reps, Transcript of 41st Legislative Day, April 2, 2007, pp 76–77 (Reps Brosnahan and Black).

[4] 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, p 41 (Rep Meyer); see also id. at p 57 (Reps Lang and Brosnahan).

[5] Id at 60–61.

[6] 95th Gen Assem, House of Reps, Transcript of 44th Legislative Day, April 27, 2007, p 53–54 (Rep Winters).

[7] State of Illinois, 95th General Assembly, Regular Session Sen Transcript of 41st Legislative Day, May 17, 2007, pp 36–38 (Sens Murphy, Noland, and Raoul).

© 2012 Elizabeth Felt Wakeman and Gregory J. Barry