In Illinois, It’s Still Cheaper to Kill than to Hurt

The major difference between compensatory and punitive damages is their intended effect.  The former attempts to make the injured party whole by returning them to the position they were prior to the occurrence, while the latter seeks to punish the wrongdoer and deter others from engaging in similar conduct (Mattyasovszky v. West Towns Bus Company, 61 Ill2d 31, 35 (1975)).  So while compensatory damages benefit the individual who was wronged, punitive damages benefit the public as a whole because, so the theory goes, others will see what can happen if they act that way and will choose not to.

The, of course, are general propositions.  Compensatory damages certainly produce some deterrent effect, but it tends to be more individualistic (“I won’t drive and talk on my cell ever again” or “I’ll make sure I look both ways next time”).  And no one can deny that a punitive damage award benefits the tort victim since they collect it and the (after tax) amount can be substantial.

In Illinois, apparently, punitive damages cannot be imposed if the tort victim dies as a result of the torefeasor’s conduct.  But they can be if the victim survives the occurrence.  This has led to the rather crude, oft-repeated adage that in Illinois “it is cheaper to kill your victim than to leave him maimed.”  See e.g., Mattyasovszky, 61 Ill.2d at 38 (Goldenhersh, J., dissenting).  

And this adage was recently reaffirmed.  See Marston v. Walgreen Company, 2009 WL 884813, slip op. (1st Dist. March 31) (vacating award of punitive damages to patient’s family where drug-addicted pharmacist who had been stealing medication from employer for years gave the patient the wrong prescription).  How could this be?

At common law, one could seek redress for personal injuries inflicted by others.  “Where the wrong is wanton, or it is willful,” a tort victim could seek punitive damages.  See Foot (Foote) v. Nichols, 28 Illl.486 (1862); Peoria Bridge Association v. Loomis, 20 Ill. 236, 251 (1858); Mattyasovszky, 61 Ill.2d at 35.  But your right to sue dies with you.  See People ex rel. Peace v. Taylor, 342 Ill. 88 (1931).

To alleviate that harsh result, Illinois, like most states, enacted statutes such as the Wrongful Death Act in 1853 and the Survival Act did not create a new statutory cause of action.  It simply allowed a decedent’s representative to maintain those statutory or common-law actions, which had already accrued to the decedent before he died.  Howe v. Clark Equipment Co., 104 Ill.App.3d 45 (1982).  One of those causes of action that the legislature saved was “actions to recover damages for an injury to the person.”  755 ILCS 5/27-6 (West 2002).

Which claims abated at death and which survived was the result of legislative judgment to which courts are not free to annex new provisions or substitute different ones or to provide exceptions, limitations, or conditions which differ from the plain meaning of the statute.  Froud v. Celotex Corp., 98 Ill.2d 324, 335 (1983).  Despite that principle, courts have read the act as somehow barring punitive damage awards in those actions where the person died as a result an “injury to the person.”  See e.g., Mattyasovszky, 61 Ill.2d at 35; Froud, 98 Ill.2d at 335; Ballweg v. City of Springfield, 114 Ill.2d 107, 117-18 (1986).  In Mattyasovszky, the Supreme Court stated that the act “has never been thought to authorize the award of punitive damages.”

But the act does not say that.  See National Bank v. Norfolk & Western Ry. Co., 73 Ill.2d 160, 173 (1978) (noting that the plain language of the Survival Act “neither authorizes nor prohibits punitive damages”).  Nor did the Mattyasovszky court cite any authority for that statement or attempt to substantiate it in any way.  Instead, it explained the difference between compensatory and punitive damages and criticized the notion that punitive damages could be awarded in any civil case because of the thin line between negligence and willful and wanton conduct and because such awards “become a windfall for the plaintiff.”

Whether punitive damages are appropriate in civil cases was not the issue.  The question was whether the legislature through the enactment of the Survival Act chose to bar those damages.  And even though the Supreme Court later characterized its holding in Mattyasovszky as being based upon the rule that dismissal of the agent results in the dismissal of the principle (see National Bank of Bloomington, 73 Ill.2d at 173 (“The court, however, did not base its denial of common law punitive damages on the broad proposition that punitive damages are unrecoverable when injury results in death.  The court held that the imposition of punitive damages was improper in light of the fact that the party whose conduct was primarily responsible for the injury had been dismissed from the action”)), courts have cited that statement as the basis for finding that punitive damages cannot be sought where the plaintiff died as a result of his injuries.

No one contends that the plain language of the act bars punitive damages – there is no mention either way.  And the Mattyasovszky court’s reading of the act seems to turn it on its head, since, as a remedial statute, it is to be liberally construed to preventabatement.  See Walter v. Board of Educ. Of Quincy School Dist. No. 172, 93 Ill.2d 101 (1982).

That reading also does not appear to make sense if one employs the normal tools of statutory interpretation.  If the act is merely a conduit to permit a common law personal injury cause of action to survive the death of the victim, there does not seem to be any basis in the statute to justify allowing a victim to seek compensatory but not punitive damages.

As noted above, punitive damages were potentially part of a common law action for an injury to a person depending on the culpability of the tortfeasor’s wrongful conduct.  If the act’s purpose was to allow a tort victim’s representative to maintain a common-law action, which had already accrued to the decedent vefore he died, then the Mattyasovszky court has changed the act from saving certain common law causes of action in their entirety to saving only selective aspects of those causes of action.  In other words, the act saved the “action” for “injuries to the person” for those who died as a result of those injuries, but not the entire “action – the punitive damages component to that action remained abated.

Given there is no doubt that the enacting legislature knew how to express what it was saving and what it was not (it expressly declined to permit actions for slander of libel to survive the injured party’s death (see 755 ILCS 5/27-6 (West 2002))), it is hard to see how that can be proper reading of the statute.  To date, no court or commentator (that I am aware of) has provided a basis either in the statutory language, the first place to look, or in the legislative history of the act, to justify that reading.

Nor does there seem to be an argument that this result makes sense from a policy (or even logical) perspective.  Why would the death of a wronged person reduce society’s interest in punishing the wrongdoer and deterring others from committing similar acts?  See Howe, 104 Ill.App.3d at 50 (“Warning and deterrence will be just as great whether the injured party is alive or dead”).

The only basis for Illinois’ continued adherence to that rule seems to be stare decisis.  See Froud, 98 Ill.2d at 337 (declining to overrule Mattyasovszky, in part, because “[c]ourts and litigants” have relied on it for decades).  While stare decisis must be respected, it is not worth guarding at all costs.  And the stare decisis argument is weak, for society should not care about protecting the reliance of the only ones who can truly claim to have relied on the current state of the law – those who include the fact that punitive damages cannot be awarded in death cases in Illinois into the calculus of their future conduct.  It’s time to rid Illinois of this black eye on its jurisprudence.