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REISER v. UNITED STATES

February 26, 1992

ROBERT R. REISER, SR., Independent Administrator of the Estate of CAROL ANN REISER, Deceased, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.


HOLDERMAN


The opinion of the court was delivered by: JAMES F. HOLDERMAN

JAMES F. HOLDERMAN, District Judge:

 On April 15, 1989 Carol Ann Reiser died when the single-engine Cessna 152 airplane she was piloting crashed during an attempted landing at DuPage Airport near West Chicago, Illinois. Plaintiff, Robert R. Reiser, Sr., independent administrator of the estate of Carol Ann Reiser, deceased, filed this action against defendant United States of America, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, claiming that the negligence of Federal Aviation Administration ("FAA") air traffic control personnel at DuPage Airport caused the death of Carol Ann Reiser.

 On February 24, 1992, at the conclusion of a ten day bench trial, this court announced from the bench its findings and conclusions on the issue of liability. The court found that the negligence of the defendant's FAA personnel was 90% of the cause of Carol Ann Reiser's death and Ms. Reiser's negligence was 10% of the cause. The court also announced the proven loss of society suffered by Ms. Reiser's parents and adult siblings to be $ 2,009,375.00, which when reduced by the 10% cause resulting from decedent's negligence, was $ 1,808,437.50. In this memorandum opinion and order, the court will explain the findings of fact and conclusions of law which are the basis for the damage award in favor of the plaintiff of $ 1,814,493.30, upon which judgment is entered. *fn1"

 DISCUSSION

 I. Persons Eligible to Recover

 Under the Illinois Wrongful Death Act, Ill. Rev. Stat. ch. 70 P2, "just compensation with reference to pecuniary injuries resulting from" a wrongful death may be awarded to "the surviving spouse or next of kin of such deceased person." The term "next of kin" is interpreted in the technical sense under the Illinois system of intestate distribution. See Schmall v. Village of Addison, 171 Ill. App. 3d 344, 351, 525 N.E.2d 258, 263, 121 Ill. Dec. 452 (2d Dist. 1988); Rallo v. Crossroads Clinic, Inc., 206 Ill. App. 3d 676, 680-81, 565 N.E.2d 15, 16-17, 151 Ill. Dec. 744 (1st Dist. 1990).

 Determined with reference to the intestacy statute, the "next of kin" of Carol Reiser, who was unmarried and had no children, are her parents and siblings. Ill. Rev. Stat. ch. 110 1/2 P2-1(d). Schmall v. Village of Addison, 171 Ill. App. 3d at 351, 525 N.E.2d at 263. Consequently, those persons eligible to recover are Robert Reiser, Sr. and Joan Reiser (the parents of Carol Reiser), and Robert Reiser, Jr., Thomas Reiser, Sandra Parker and Kathleen Reiser (the brothers and sisters of Carol Reiser).

 II. Distribution of Damages

 The Wrongful Death statute provides that the amount of recovery should be distributed by the court "to each of the surviving spouse and the next of kin of the deceased person in proportion, as determined by the court, that the percentage of dependency of each person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person." Ill Rev. Stat. ch. 70 P2.

 "Dependency" includes loss of society. In re Estate of Wiese, 178 Ill. App. 3d 938, 941-42, 533 N.E.2d 1183, 1185, 128 Ill. Dec. 95 (3d Dist. 1989). See also In re Estate of Keeling, 133 Ill. App. 3d 226, 228-29, 478 N.E.2d 871, 873-73, 88 Ill. Dec. 380 (3d Dist. 1985) (explaining that amendment of Wrongful Death Statute in 1955 changed method of distribution from intestate succession to degree of dependency). Applying these principles, the court has determined damages with respect to the relative dependence of each of the beneficiaries on the society of Carol Reiser, which was lost when she died on April 15, 1989. The annual damage figures announced for each beneficiary, which will be discussed later in the opinion, reflect the court's findings in this regard.

 III. Reduction of Damages Based on Plaintiff's Fault

 Under Ill Rev. Stat. ch. 110 P2-1115, the plaintiff's recovery in actions for bodily injury or death is barred if the trier of fact finds that plaintiff's fault is more than 50% of the proximate cause of the injury. If the plaintiff's fault is not more than 50% of the proximate cause of the injury, recovery will not be barred but will be reduced in the proportion of the amount of fault attributable to the plaintiff. See e.g., Fetzer v. Wood, 211 Ill. App. 3d 70, 569 N.E.2d 1237, 155 Ill. Dec. 626 (2d Dist. 1991) (applying modified form of comparative negligence to wrongful death claims accruing after November 25, 1986, the enactment date of the statute). In its bench ruling of February 24, 1992, the court found that Carol Reiser's negligence was a 10% cause of the accident. Consequently, plaintiff's recovery is reduced by 10% of the total compensatory damages found by the court.

 IV. Use of Life Expectancy Tables

 In making its damages determination, the court has employed the life expectancy table issued by the U.S. Department of Health and Human Services, which was contained in Plaintiff's Exhibit 42. Mortality tables are admissible in wrongful death actions on the subject of both the decedent's and the next of kin's life expectancy. See Illinois Pattern Jury Instructions (Civil), Instruction No. 31.13, approved in Baird v. Chicago Burlington & Quincy R.R. Co., 63 Ill. 2d 463, 471, 349 N.E.2d 413, 417 (1976). Although future life expectancy is a factor in the damage award calculation, damages for loss of society are not reduced to present value. See Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 578 N.E.2d 970, 161 Ill. Dec. 324 (1991).

 V. Type of Damages Recoverable

 The FTCA bars recovery of punitive damages, i.e., damages the recoverability of which depends on proof that the defendant has engaged in intentional or egregious misconduct and the purpose of which is to punish. See Molzof v. United States, 116 L. Ed. 2d 731, 112 S. Ct. 711, 718 (1992). Additionally, Illinois law does not permit the recovery of punitive damages in a wrongful death action. See e.g., In re Air Crash Disaster Near Chicago, 644 F.2d 594, 605 (7th Cir. 1981).

 Turning to compensatory damages, there was no evidence that Carol Reiser contributed actual financial support to any of her family members. The evidence presented on the damages issue related to the "loss of society" suffered by the Reiser parents and children as a result of Carol's death. Under Illinois law, the elements of loss of society include loss of the decedent's "love, affection, care, attention, companionship, comfort, guidance and ...


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