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Survey of Illinois Law: Statutory Damage Exclusions

38 Southern Illinois University Law Journal 875 (2014)

13 Pages Posted: 19 Feb 2014 Last revised: 7 Mar 2015

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: February 18, 2014


The Illinois General Assembly may limit damages for certain claims by setting caps or by recognizing exclusions for certain or all damages via no duty or immunity statutes. Caps have been successfully challenged on separation of powers grounds. Exclusions have traditionally been challenged on Illinois constitutional right to a remedy grounds, with early success in 1946 but with failures since 1958. The most recent failure occurred in the Second District in October, 2013 in Murphy v. Colson. Unfortunately, that ruling and its predecessors leave some continuing uncertainties about right to remedy constraints on statutory damage exclusions and even greater uncertainties about other constitutional constraints. This paper explores how the right to remedy constrains future statutory damage exclusions for certain injuries or for certain claims, as well as examines briefly other constraining constitutional principles.

While the paper demonstrates how the Illinois constitutional remedial right limits General Assembly authority to exclude certain actual damages for certain claimants, or to exclude all actual damages for certain claimants via no duty or immunity laws, it also shows that the constraints are not wholly clear. Too often it finds that Illinois courts make overly broad pronouncements about legislative authority. A close examination of Murphy v. Colson, and of earlier Illinois Supreme Court precedents, reveals that significant limits on damage statutes inhere in the Illinois constitutional remedial right. The breadth of further constitutional constraints, especially those involving special legislation/equality and jury trial, remain unclear.

Keywords: state constitution, right to remedy, actual damages, damage caps, damage exclusions, constitutional right to remedy, juries, separation of powers, damage immunities, damage exclusions

Suggested Citation

Parness, Jeffrey A., Survey of Illinois Law: Statutory Damage Exclusions (February 18, 2014). 38 Southern Illinois University Law Journal 875 (2014). Available at SSRN:

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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