Mitigate Damages

Mitigate Damages

In most cases, a person injured because of another party's negligence or wrongful act is entitled to recover damages.

The amount of money an injured party receives for a personal injury claim depends on the seriousness of the person's injuries in most cases. The value of a claim typically increases with the severity of the injury. 

However, the damages awarded in a personal injury lawsuit could also depend on other factors.

If the injured person's actions contributed to their injury, their damage award might be reduced. Another factor that could significantly impact the amount of money a person might receive for an injury claim is the duty to mitigate damages. 

What is the Duty to Mitigate Damages in a Personal Injury Lawsuit?

Damages in a personal injury case can include economic damages and non-economic damages. 

Examples of damages include:

  • Medical bills 
  • Cost of personal care
  • Loss of income
  • Pain and suffering
  • Permanent impairments

Injured parties are expected to take steps to mitigate the damages caused by an accident or injury to avoid additional damages. 

What Steps are Required to Mitigate Damages?

The steps a party must take to mitigate damages depend on the facts and circumstances of the case. Examples of actions that can mitigate damages include, but are not limited to:

  • Seeking prompt medical attention after a car accident or truck accident, slip and fall accident, or another injury
  • Following a medical treatment plan
  • Attending and participating in physical therapy
  • Taking prescribed medications and avoiding certain activities
  • Reasonable surgeries or other treatments expected to improve the person's conditions
  • Staying home from work or seeking modified work conditions when ordered by a doctor
  • Reporting all symptoms to the doctor, including new symptoms as soon as they appear
  • Working as permitted by the physician to reduce the loss of income
  • Searching for new employment in a breach of contract case

Mitigation of damages is measured by the steps that a reasonable person under the same or similar circumstances would have taken. In other words, did the person act with diligence and ordinary care to prevent further damages?

Failure to Mitigate Damages and Compensation for Damages

If a person fails to mitigate damages, the at-fault party generally does not have to compensate the person for damages related to their failure to mitigate. 

The defendant in a personal injury lawsuit has the burden of proving the plaintiff failed to take reasonable steps to prevent additional damages. Suppose the defendant cannot prove the plaintiff failed to mitigate damage. In that case, the plaintiff should be entitled to full compensation of all damages, unless the plaintiff contributed to the cause of the injury.

For example, a landlord sues the tenant of his building for damages due to an injury caused by the tenant's dog. The landlord suffers damages because the dog bites the landlord when the landlord is inspecting the property. 

The tenant claims that the landlord failed to mitigate damages because the landlord refused medical care. He chose to use other forms of medical treatment instead of following the physician's recommendations to treat the wound. The landlord developed an infection and required hospitalization to treat the infection.

The landlord's failure to take reasonable steps after being injured reduces the landlord's damages. The jury finds that the landlord is not permitted to include any medical bills or other damages related to the hospitalization for the infection. The failure to mitigate by not allowing the physician to treat the wound caused the infection — not the tenant.

Some factors that jurors might consider when determining whether a plaintiff failed to mitigate damages include: 

  • The party's awareness that he needed to mitigate damages 
  • The amount of time between the injury and the efforts to mitigate damages
  • The overall expenses required to mitigate damages and whether the plaintiff could mitigate damages 
  • The opportunities the plaintiff had to mitigate damages and losses
  • The effectiveness of any steps that the plaintiff did take to minimize losses

When a plaintiff does not appear to take the injuries seriously, a jury may not believe that the plaintiff deserves full compensation for all damages.

Generally, seeking immediate medical attention and following your doctor's treatment plan are excellent ways to avoid an allegation of failure to mitigate damages. Returning to work as soon as your doctor releases you to do so, and searching for work if you were laid off, are ways to mitigate your loss of income. 

Call Our Oklahoma Personal Injury Lawyer for a Free Consultation 

Seeking legal advice can help ensure that you take the steps necessary to protect your right to full compensation. Contact our office to schedule a free consultation to discuss your case with an experienced Oklahoma personal injury lawyer.