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What Does it Mean to Mitigate Damages?

If you’ve read through an insurance policy or contract, you may have heard the term “duty to mitigate damages.” This legal phrase isn’t as technical as it seems. Mitigate means minimize. This duty applies in personal injury lawsuits. A plaintiff in a personal injury case has a duty to minimize or “mitigate” their injuries and damages after an accident, such as by seeking prompt medical treatment after an accident. In other words, an injured party cannot rack up unnecessary expenses after and sue the at-fault party for those damages. They must “exercise reasonable diligence and ordinary care in attempting to minimize [the] damages.” 

An injured party’s failure to mitigate damages could result in them recovering less compensation for their injuries — or sharing blame and financial responsibility for them. Importantly, a party’s duty to mitigate damages only arises when the party becomes aware of their injury — not before. To help understand the mitigation of damages, the trusted car accident lawyers at Sweeney Merrigan Law, LLP have the knowledge and experience to assist you. Speak with one of our knowledgeable attorneys today by filling out our contact form or calling us at (617) 391-9001.

How Can the Duty to Mitigate Damages Affect My Personal Injury Claim?

According to the Supreme Judicial Court of Massachusetts, “a plaintiff in a negligence action has a duty to mitigate damages that were avoidable by the use of reasonable precautions.” As discussed above, a plaintiff has a duty to mitigate damages, meaning their failure to mitigate damages could weaken their claim. A defendant or insurance company will often accuse a personal injury victim of failing to mitigate their damages after an accident. Failure to mitigate damages is an affirmative defense in a personal injury case. This means the defendant admits (or affirms) they were negligent, but points out that the fact the plaintiff failed to take steps to prevent or minimize injury should be considered.

The defendant must raise the affirmative defense in their reply to a plaintiff’s complaint or later court documents. They then have to present evidence that the plaintiff neglected to reasonably reduce their damages. If they can successfully shift some of the blame for your injuries to you, you will recover less compensation for your damages. If they can shift 51% or more of the blame to you, Massachusetts’ comparative fault law will bar you from recovering any compensation for your financial and emotional losses after an injury.

If you are 50% or less responsible for your injuries, your damages will be reduced to account for your share of blame. For example, say you have $80,000 in damages after a car accident, but the jury finds you 30% at fault for your damages due to your failure to mitigate damages. In this case, you can only recover $56,000 or 70% of your damages.

Do I Have to Purchase Medical Supplies or Other Items to Mitigate Damages?

You don’t have to take every possible step to mitigate your damages, especially if they are expensive or inconvenient. However, as discussed above, you must take reasonable precautions to mitigate your damages. A judge or jury will decide whether a precaution is reasonable. Common sense should tell you, too. 

For instance, if you twisted your ankle after a slip and fall accident, an ankle brace may help you recover faster. Wearing an ankle brace is inexpensive and not inconvenient—it’s likely reasonable. So, you may have to purchase an ankle brace as part of your duty to mitigate damages.

Proving Failure to Mitigate Damages

Also referred to as the doctrine of avoidable consequences, mitigation of damages is a legal defense that states an injured party may not recover unreasonable expenses when they could have avoided these expenses with reasonable effort. 

This legal concept prevents injured parties from receiving damages in situations where they likely could have avoided the injury in the first place or minimized the cost and impact of the injuries they have suffered. 

Common Examples of Damage Mitigation

When an accident occurs, it is likely that one party will suffer injury as a result of the other party’s actions. It is the duty of the injured party to take actions that will mitigate the extent of the harm they will suffer as a result of the at-fault party’s actions. Some examples include:

  • Pulling off to the side of the road after a car accident to avoid being hit by another vehicle
  • Seeking medical attention so that your injuries do not worsen

How the Defense Proves Failure to Mitigate Damages

While failure to mitigate is a common defense tactic, it will generally not prevent the at-fault party from paying any damages. However, it could reduce the amount for which they can be held liable for the accident. In order for the defense to prove that the injured party did not attempt to mitigate damages, they will point out situations in which the injured party could have taken reasonable action to reduce the harm they have suffered. Below are two examples:

  • Refusal of Medical Treatment: After a car accident, victims are often left with extensive injuries such as severe burns, laceration, or spinal injuries. When the injured party refuses medical treatment or does not seek medical treatment altogether, their condition will likely worsen. In this case, the injured party’s refusal of medical treatment will likely be seen as failure to mitigate damages.
  • Refusal to Seek Employment: After an accident, it is not uncommon for the injured party to seek lost wages as a result of being unable to work due to their injuries. If it is provable that the injured party had an opportunity to work, yet did not follow through, this discovery could reduce the amount in compensation they are awarded. 

If it can be argued that you failed to mitigate damages in your car accident, much of your compensation may be on the line. If you are unfamiliar with the policy of mitigating damages in Massachusetts, it may be in your best interest to contact our knowledgeable car accident lawyers. Our award-winning legal team can help you understand the best way to go about proving your side of the story. 

Who Decides Whether a Plaintiff Reasonably Mitigated Their Damages?

You don’t have to take every possible step to mitigate your damages, especially if they are expensive or inconvenient. However, as discussed above, you must take reasonable precautions to mitigate your damages. A judge or jury will decide whether a precaution is reasonable. Common sense should tell you, too. 

For instance, if you twisted your ankle after a slip and fall accident, an ankle brace may help you recover faster. Wearing an ankle brace is inexpensive and not inconvenient—it’s likely reasonable. So, you may have to purchase an ankle brace as part of your duty to mitigate damages.

Examples of A Failure to Mitigate Damages

The defense of mitigation commonly arises when the plaintiff failed to seek prompt medical attention for their injuries after an accident. The defendant will typically claim that the plaintiff’s decision to forego immediate medical care worsened their injuries. They will argue that this delay in medical treatment resulted in more extensive damages, such as larger medical bills and lost wages, than if the plaintiff had sought medical attention right away.

For example, assume Tom breaks his leg after Brett negligently crashed his bike into Tom’s vehicle. Say Tom didn’t go to the hospital until a week later, resulting in the leg healing incorrectly. His failure to seek immediate medical treatment resulted in extra medical bills and pain and suffering. Tom will likely not be able to recover damages for his additional medical expenses and pain and suffering due to his failure to seek prompt treatment. He failed to mitigate damages. 

Contact a Boston Mitigation Lawyer If You Have Questions

If an insurance company is blaming you for an accident or accusing you of failing to mitigate your damages, you should contact a Boston personal injury lawyer for help. 

When you choose to work with Sweeney Merrigan Law, LLP, you will have access to a team of award-winning car accident lawyers. Our trusted legal team is led by our experienced co-managing partners, J. Tucker Merrigan and Peter M. Merrigan. J. Tucker Merrigan has been a co-managing partner of the firm for over a decade. He has been recognized for his work in the Massachusetts legal system with awards that include: Under 40, National Trial Lawyers; 2020-2021 Lawyer.com Top Attorney Award. Our other co-managing partner, Peter M. Merrigan has been recognized for his work helping the communities of Boston: 2018 Top 40 Under 40, National Trial Lawyers; 2021 Massachusetts “Super Lawyer.”

Your attorney can help you take reasonable steps to mitigate your damages and help you recover the compensation you deserve. Call us at (617)-231-9490.