May 2011 • Volume 99 • Number 5 • Page 222
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Punitive damage claims do not survive the death of nursing home residents
Because the Nursing Home Care Act does not provide otherwise, punitive damage claims die along with the resident, the Illinois Supreme Court rules.
As a general rule, the right to seek punitive damages for personal injuries does not survive the death of an injured party in Illinois. For that reason, an injured party may recover punitive damages for a wrongdoer’s willful and wanton behavior, but the party’s estate may not recover such damages for such behavior if it results in the party’s death.
Answering a certified question under SCR 308, the Illinois Supreme Court reviewed the history behind this rule and reaffirmed it in Vincent v Alden-Park Strathmoor, Inc, No 110406, 2011 WL 1077706 (Ill Sup Ct).
The Vincent facts
Marjorie Vincent, an elderly resident of Alden-Park Strathmoor, a long-term nursing care facility in Rockford, died in December 2006. Her estate’s administrator, Thomas Vincent, filed a three-count complaint against the facility under the Illinois Nursing Home Care Act, 210 ILCS 45/1-101 et seq, and the Wrongful Death Act, 740 ILCS 180/1, alleging that the facility breached its duty under the Nursing Home Care Act to refrain from neglecting or abusing Marjorie, failed to provide her with adequate medical or personal care or maintenance, and acted willfully and wantonly, with conscious or reckless disregard for Marjorie’s health and safety.
All counts requested compensatory damages of more than $50,000. In Count III, Vincent stated that he reserved the right to bring a claim for punitive damages pursuant to 735 ILCS 5/2-604.1, which allows a plaintiff, on motion, to amend a complaint to include such a prayer if the court finds after a hearing that a reasonable likelihood exists of proving facts at trial sufficient to support such an award.
The facility moved to dismiss, arguing, among other matters, that punitive damages do not survive a plaintiff’s death under Illinois law. The circuit and appellate courts agreed, but, on Vincent’s motion, certified the following question for review under SCR 308: “Does a claim for punitive damages based on allegations of willful and wanton violation of the Nursing Home Care Act survive the death of the resident on whose behalf the cause of action was brought?” The supreme court granted the petition for leave to appeal.
The Illinois Nursing Home Care Act provides for private actions against covered facilities and for payment of actual damages, costs, and attorney’s fees by facilities to facility residents whose rights as specified in the statute are violated. Paragraph 3-604 of the statute also provides that the statute’s remedies “are in addition to and cumulative with any other legal remedies available to a resident.” The statute does not, however, mention punitive damages.
A matter for the legislature
Reviewing the history of the right to recover punitive damages, the court noted that tort causes of action originally expired along with either party to the tort, since the deceased victim could no longer be appeased and the deceased wrongdoer could no longer be punished. Though the law has evolved so that those actions now generally survive, and tort damages that are compensatory in nature are now recoverable whether the injured party is dead or alive, courts have continued to hold that common law punitive damages, whose purpose is to punish and deter, not to compensate, should abate with the death of the injured person.
The court noted that the Survival Act, 755 ILCS 5/27-6, provides that, except for slander and libel, actions to recover damages for an injury to the person will survive the injured person’s death. Earlier, the court construed that provision to hold that where a statute that creates a cause of action expressly incorporates a provision that authorizes recovery of punitive damages and the cause of action survives the death of the injured party, the right to pursue the statutory punitive damages will also survive.
But, the court continued, the Survival Act did not alter the rule respecting recovery of common law punitive damages. That a statutory cause of action may proceed under the Survival Act does not affect a common law claim for punitive damages, the court said.
For a punitive damages claim to survive, the statute underlying the cause of action must expressly authorize the recovery of punitive damages, the court said. Because the Nursing Home Care Act does not do so, Vincent may not recover punitive damages for Marjorie’s death.
The court acknowledged that strong policy arguments existed both for and against allowing the recovery of common law punitive damages upon the finding of willful and wanton violations of the Nursing Home Care Act. But those arguments, it said, should be directed to the legislature and not to the court.
Therefore, in answer to the certified question, the court held that a claim for common law punitive damages on behalf of a nursing home resident who died, allegedly as the result of the nursing home’s breach of its duties under the Nursing Home Care Act, will not survive the resident’s death.