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.
Here’s what else you need to know about the duty to mitigate damages.
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.
Possibly. 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.
A court or jury will determine whether a party made reasonable efforts to minimize their damages based on the facts of a case. Typically, personal injury cases end in settlement — not trial. Some estimates suggest that as many as 95% of personal injury cases settle before trial.
Insurance companies may argue that a plaintiff failed to mitigate damages during settlement negotiations with the plaintiff, forecasting their arguments at trial. In this case, your Boston personal injury attorney can advise you whether the insurance company has a strong argument that should factor into the settlement offer.
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.
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. Your attorney can help you take reasonable steps to mitigate your damages and help you recover the compensation you deserve.