Legal Memorandum: Damages for an Increased Risk of Future Injury

Issue: Under Illinois law, can in injured party recover damages for an increased risk of future injury in a personal injury action?

Illinois recognizes damages for the increased risk of future injury.  In 2002, in the case of Dillon v. Evanston Hospital, 199 Ill. 2d 483, 503, 771 N.E.2d 357, 370 (2002), the Supreme Court of Illinois announced the rule that because “a plaintiff must be permitted to recover for all demonstrated injuries,” a plaintiff may recover damages for the increased risk of future injury, even if the increased risk of future injury is not proven within a reasonable degree of certainty.  “The burden is on the plaintiff to prove that the defendant’s negligence increased the plaintiff’s risk of future injuries.  [For] a future injury that is not reasonably certain to occur, . . . the compensation would reflect the low probability of occurrence.”  Id. at 503, 771 N.E.2d at 370.  Damages for the increased risk of future injury are determined by multiplying the total compensation to which the plaintiff would be entitled if the future injury were certain to occur by the probability that the injury will in fact occur.  Id. at 507, 771 N.E.2d at 372.

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