Mitigation of Damages: Your Duty To Limit Your Losses

Injured plaintiffs have a legal duty to take reasonable steps to limit losses after an accident, a principle known as the duty to mitigate damages. If a plaintiff fails to do so, the defendant may raise that failure as a defense in an effort to reduce the amount of damages awarded. When it comes to mitigating loss, the law requires a reasonable effort, not perfection or an extraordinary sacrifice.

Understanding this duty can help you protect your health and limit any reduction in your potential recovery in a personal injury claim. To find an experienced personal injury attorney in your area, visit the Super Lawyers directory.

What Is the Duty To Mitigate Damages?

The duty to mitigate damages means that a plaintiff cannot recover damages for losses that reasonable care after the injury would have prevented. Courts often call this the doctrine of avoidable consequences. This duty is well established in tort law and applies only to conduct after the injury occurs.

The Legal Rationale Behind the Duty

Some policy goals driving the development and application of the duty to mitigate are as follows:

• Fairness. A defendant should pay for the harm they caused but should not be held responsible for additional harm the plaintiff could have prevented.
• Efficiency. This defense encourages plaintiffs to recover, return to productivity, and limit needless additional losses.
• Balance. The defendant remains responsible for all damages that reasonable conduct could not have prevented.

Two Types of Losses Plaintiffs Must Address

When mitigating damages, plaintiffs must address both physical and financial losses.

• Physical losses. Plaintiffs can minimize these losses by seeking timely medical care after the accident, following reasonable treatment recommendations, and attending therapy and follow-up sessions.
• Financial losses. The duty to mitigate requires the plaintiff to return to suitable work (if applicable) once medically cleared. They should seek comparable employment if the prior job is no longer possible.

Claimants must address both physical and financial losses as part of their duty to mitigate damages.

How Mitigation Differs from Comparative Fault

The duty to mitigate is a separate concept from comparative fault. Comparative fault considers the plaintiff’s role in causing the accident, while mitigation focuses on the plaintiff’s choices after the incident. In practice, comparative fault reduces the injured party’s potential recovery by a percentage based on the plaintiff’s own negligence. Failure to mitigate usually reduces recovery only to the damages that could have been avoided.

The application of the concept varies by state. For example, some states treat pre-accident conduct, such as not wearing a seatbelt, under mitigation-style rules. Others bar or limit that type of evidence.

Failure To Mitigate as an Affirmative Defense

In a personal injury case, an affirmative defense is a claim the defendant brings to defeat the claim or reduce liability, even if the underlying claim is valid. Procedural rules determine when a defendant must raise failure to mitigate. In federal court, it is generally an affirmative defense that must be stated in a responsive pleading.

The Burden of Proof in Mitigation Claims

In most jurisdictions, defendants, not the injured party, bear the burden of proof. In general, the elements the defendants must typically prove include the following:

1. The plaintiff failed to take reasonable steps to mitigate their loss.
2. A reasonable person would have taken that step in the same or similar circumstances, and the step was available to the plaintiff.
3. Taking the step would have reduced the plaintiff’s damages.
4. The amount of damages that could have been avoided through reasonable mitigation.
   To prove the claim, speculation about causation, mitigation, and damages is not enough. Defendants must present credible evidence to prove their claims. In some cases, defendants must retain medical or vocational experts to support their case.

Common Failure-To-Mitigate Arguments

Common arguments defendants raise for failure to mitigate damages include:

• Refusing recommended medical treatment. Declining low-risk care, such as physical therapy or prescribed medication, that likely would have improved recovery.
• Delaying medical care. Waiting to see a doctor until the problem gets worse.
• Missing appointments or abandoning treatment. Beginning care but failing to follow through on appointments can lead the defendant to argue that the injury was minor or the plaintiff did not try to recover.
• Unnecessarily delaying return to work. Recovering but remaining off work after medical clearance, or refusing suitable light-duty or modified-duty work.
• Not seeking alternative employment. Failing to look for comparable work when returning to a former job is not possible.

How the Defense Reduces a Recovery

In practice, this defense can work, as shown in the following example. A plaintiff’s doctor clears them for modified work after three months, but the plaintiff stays out of work for nine months. In this case, a court may limit lost-wage damages to the medically supported period.

As it affects medical damages, a defendant can argue for reduced damages if the plaintiff skipped recommended therapy, creating gaps in treatment that prolonged recovery. The defendant may challenge the cost of extended treatment and related pain and suffering. While the defense reduces only the avoidable portion of damages, it does not eliminate the entire claim.

Reasonable Effort vs. Unreasonable Burdens in Mitigation

To determine what steps a plaintiff must take after an injury caused by another party to mitigate damages, the court asks, “What would a reasonable person do under similar circumstances?”

Courts consider the plaintiff’s situation, resources, and medical advice. A plaintiff is not required to accept significant risks or extraordinary costs. It’s what a “reasonable person” would do for ordinary care if faced with the same or similar choices.

What Courts Generally Consider Reasonable Effort

Again, courts do not require plaintiffs to undertake extraordinary efforts or great personal sacrifice to meet their legal obligation to mitigate losses. Here are several examples of reasonable efforts to mitigate losses in personal injury cases.

• Following routine medical advice
• Accepting low-risk, commonly recommended treatment
• Returning to suitable work
• Conducting a good-faith job search
• Seeking prompt medical care and following reasonable medical guidance for continued recovery

What Courts Generally Consider Unreasonable Burdens

Just as courts recognize reasonable efforts for plaintiffs to mitigate damages in personal injury cases, they also recognize certain efforts as unreasonable because they place too much of a burden on the injured party. These can include:

• Undergoing risky or invasive surgery
• Paying for treatment the plaintiff cannot afford
• Accepting substantially inferior employment
• Relocating for work
• Working beyond medical restrictions

Burdens That Are Fact-Dependent

Some circumstances do not fit neatly into a category of reasonable or unreasonable burden. As in all cases, courts must closely examine the facts. Gray areas can include:

• Conflicting medical advice
• Religious or deeply held objections to treatment
• Fear and psychological factors
• The eggshell plaintiff rule

In cases like these, whether the plaintiff failed to mitigate potentially avoidable losses depends on the facts.

How To Protect Your Personal Injury Claim

If you have a strong personal injury case against a defendant who engaged in wrongful conduct, don’t jeopardize your ability to get the most for your claim. You must mitigate damages. Taking reasonable steps can protect your right to recover the most compensation.

1. Seek medical care promptly and follow your doctor’s treatment plan.
2. Communicate any concerns about recommended medical care, and ensure your medical providers document the reasons for your concerns.
3. Keep thorough records of appointments, prescriptions, work restrictions, and job search efforts.
4. If you are claiming lost wages, respond thoughtfully to job offers and discuss any opportunities for modified work with your doctor and attorney.
5. Work with an experienced personal injury attorney.
   You can take concrete steps to mitigate damages and protect and strengthen your claim. This also reduces the risk that the defense will argue that your losses could have been avoided.

Seek Legal Help from a Personal Injury Lawyer

Hiring a personal injury attorney can guide you through your recovery and legal case. An experienced personal injury attorney in your area can provide valuable guidance, explain what to expect, outline steps to build the strongest case, and help you mitigate damages.