Traditional Rule
Historically, Illinois courts were divided on this issue with no clear rule. Some Illinois courts held it would be unjust to require a defendant to compensate for injuries which may never occur, but others found that the increased risk of an injury was itself a compensable injury. The traditional American rule stated a plaintiff may only recover for future injuries which are reasonably certain to occur, meaning over 50% likely. If an injury was not more than 50% likely to occur, a plaintiff could not recover damages for it.Modern Illinois Law
In 2002, the Illinois Supreme Court addressed this issue directly. In Dillon v. Evanston Hosp., the Court held that a plaintiff can recover damages for increased risk of future injury that is not reasonably certain to occur. However, the risk must be based on evidence, not speculation, and the award must reflect the low probability of occurrence. Further, it is the plaintiff’s burden to establish that the defendant's negligence increased the plaintiff's risk of future injuries.How are Damages Calculated?
Illinois responded to this ruling by creating a formula for juries to calculate this new category of damages. To calculate the damages for increased risk of future harm, one must multiply the total future damages by the likelihood of the injury.For example, using the above hypothetical, a car crash increased your chance of developing early-onset dementia by 30%, and the injury would result in $1,000,000 worth of damages. Under Dillon, your increased risk damages would be calculated by multiplying $1,000,000 by 0.3, resulting in $300,000. This amount would be added to any damages you would have received before, such as damage to your car, pain and suffering, and medical bills.
Limitations
Of course, there are exceptions. The Illinois Supreme Court has reiterated that increased risk of future harm is an element of damages, not a compensable injury by itself. This means that while increased risk of future injury may increase the amount a plaintiff receives in a lawsuit, it cannot be the sole basis for their suit. To recover damages for increased risk of future harm, there must also be an actual material injury.Further, to recover Dillon damages, the plaintiff must be able to quantify the increased risk of future harm. This means, in order to recover for increased future risk of harm, a Plaintiff must provide evidence to show to what degree an incident increased the chance of a future injury.
