The Mitigation of Damages Duty

Mitigation of damages is a legal concept that commonly arises in personal injury cases and breach of contract claims. It means that the person who suffered an injury or loss must take reasonable steps to minimize the harm they suffer. If the injured party does not mitigate their damages, the party that caused the harm is not responsible for any additional damage caused.

While this concept may seem unfair, it is intended to ensure that a defendant is only required to pay for the harm they actually caused and prevents the injured party from receiving a windfall.

What Is the Mitigation of Damages Duty and What Does It Mean?

Mitigation of Damages, also known as the “Doctrine of Avoidable Consequences,” is often used by insurance adjusters and defense lawyers to reduce a damage award in a personal injury case or contract dispute. It means you are legally obligated to minimize your losses if you were injured or cheated. If you do not take reasonable steps to reduce the losses you suffered, the court can reduce the monetary award you receive.

How Are Damages Calculated?

To understand the duty to mitigate damages, it is helpful to know how damages are calculated in the first place.

In a typical personal injury claim, an injured person is entitled to recover compensation for:

• Economic losses. Economic losses are the actual financial losses you suffered because of your injuries. These include things like past and future medical expenses, lost wages, household services, property damage, out-of-pocket expenses, lost earning capacity, and the cost of vocational rehabilitation.

• Non-economic losses. Non-economic losses, also known as pain and suffering, compensate an injured victim for intangible losses like pain, emotional anguish, humiliation, loss of enjoyment of activities, or a worsening of prior injuries. A spouse may be entitled to recover non-economic losses for loss of consortium.

To calculate the monetary impact of the accident and your injuries, you add your economic damages plus your non-economic damages to arrive at the total value of your claim. One way that insurance adjusters and defense lawyers try to reduce the total amount of compensation you are owed is by claiming that you failed to mitigate your damages.

What Are Examples of Failure to Mitigate Damages?

The duty to mitigate damages can take various forms depending on the nature of the accident and your injuries. Here are some examples:

• You do not pull your car to the side of the road after a car accident, resulting in additional property damage caused by oncoming traffic.
• You refuse to seek medical treatment after an accident, resulting in additional injuries caused by your failure to seek prompt medical care.
• If you have the opportunity to return to work after a slip and fall injury but choose not to, you cannot seek lost wages from the time you reasonably should have returned to work.
• If your car is in a tow yard after an accident, you must pay to remove it after a short period of time while the insurance company investigates the case.

Do I Have a Duty to Mitigate Damages?

If you were hurt in an accident, you have a mitigation of damages duty. You are expected to take reasonable steps to reduce the consequences of the accident.

For example, if you sprained your ankle or wrist, you may need to purchase a brace. If you broke your leg, you would be expected to pay for a cast and crutches.

If you do not take precautions to reduce your damages and accumulate additional expenses that you would not have otherwise had, the court can reduce your damage award, and you will not be able to recover compensation for these losses.

But if you incur additional expenses to mitigate your damages, you can recover compensation for those expenditures. For example, if you were hurt in a car accident and had to purchase a cane, you can be reimbursed for the cost of the cane. Conversely, if a doctor were to find that not purchasing a cane made your condition worse, you may not be entitled to compensation for additional injuries you suffered because you did not use the cane.

Proving Failure to Mitigate Damages

The duty to mitigate damages is an affirmative defense. The defendant must prove that you did not take reasonable steps to minimize your losses. Defendants and insurance adjusters use mitigation of damages to try to reduce their liability after an accident.

McKinney Vos Will Maximize Your Compensation After an Accident

Your actions after an accident can significantly impact the compensation you are entitled to receive. If you were hurt in an accident, the personal injury lawyers at McKinney Vos can help to determine your mitigation of damages during your case.. We will answer your questions, explain your options, and help maximize your financial compensation. Contact us today to schedule your confidential, no-cost consultation.