Mitigate Damages

An injured party has a duty to mitigate damages after a car accident, slip and fall, or other personal injuries. The doctrine of mitigation of damages prevents an injured person from recovering damages that could have been avoided.

A duty to mitigate arises in tort law and breach of contract cases. A breach of duty can have serious consequences for a plaintiff in a lawsuit.

In personal injury cases, a failure to mitigate damages could result in the injured party receiving much less compensation for their injuries. Understanding the duty to mitigate and the steps to take after an injury can help ensure that this doesn’t happen to you.

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How Can the Duty to Mitigate Damages Impact Injury Claims?

Under Florida law, the theory of avoidable consequences requires injured parties to take reasonable steps to mitigate damages. Failing to mitigate damages is an affirmative defense in a personal injury lawsuit. The defendant must raise this defense and has the burden of proving that the plaintiff’s failure to mitigate directly led to increased damages.

For example, let’s assume a person failed to seek medical attention for several weeks after being injured at an amusement park. When the person finally sought medical treatment, the physician recommended surgery as the only viable treatment option. As a result, the person had surgery and was out of work for six months.

The person filed a lawsuit against the amusement park seeking economic and non-economic damages under premises liability laws for:

Medical care and expenses for treatment of injuries, including the cost of surgery and physical therapy
Lost wages and benefits from being out of work before and after the surgery
Pain and suffering from injuries, emotional distress, and mental anguish
Permanent impairment and disability
Reduction in future earning capacity
Loss of enjoyment of life and reduced quality of life
Personal care and nursing care

The defense claims that by failing to seek prompt medical care, the plaintiff caused their injuries to worsen. Medical experts for the defense testified that seeking medical care sooner would have avoided the need for surgery.

If the jury agrees, the plaintiff may not recover the full compensation for damages related to the surgery, including the cost of surgery and lost income during recovery. These damages could total a substantial portion of the injury claim.

What Steps Are Required to Mitigate Damages for a Personal Injury?

You must make a reasonable effort to minimize the damages caused by another party’s negligent acts. Some of the steps that an injured party may take to mitigate damages include:

Seeking prompt medical treatment for injuries
Following the treatment plan prescribed by a doctor, including undergoing necessary and reasonable surgeries, physical therapy, and other forms of treatment
Actively participating in physical therapy
Promptly reporting new symptoms to the doctor as they appear
Returning to work when permitted to do so by the physician to reduce the amount of lost wages
Taking the prescribed medications
Avoiding specific activities by following limitations and restrictions ordered by a physician
Staying home from work or following a physician’s order to perform light duty only
Seeking a second opinion if the person disagrees with the treatment plan

An injured party is not required to do more than a reasonable person would have done to mitigate damages. In a jury trial, the jurors determine what is “reasonable” in a given situation.

How Does a Jury Decide if the Plaintiff Mitigated Damages?

The plaintiff’s conduct is measured against the “reasonable person” standard. First, the jurors decide what a reasonably prudent person would have done to mitigate damages.

Then, they consider the plaintiff’s conduct. If the plaintiff’s conduct fell short of what a reasonable person would have done in the same situation, the jury may find that the plaintiff failed to mitigate damages.

Factors that the jurors might consider when deciding whether the plaintiff’s conduct was reasonable include, but are not limited to:

When did the plaintiff become aware that they needed to mitigate damages?
Did the plaintiff go to the doctor when the plaintiff began experiencing symptoms?
The amount of time between the plaintiff’s injury and the efforts made to mitigate damages
The opportunities the plaintiff had to mitigate losses and damages
The expenses required to mitigate damages and the plaintiff’s ability to pay the expenses
The effectiveness of the steps the plaintiff took to mitigate losses and damages

Generally, seeking immediate medical treatment after an accident or injury is an indication that the plaintiff sought to mitigate damages. Continuing to follow your doctor’s treatment plan is also evidence that you attempted to reduce the damages caused by an accident or injury.

Failing to seek immediate medical care may not always be considered a failure to mitigate damages. If jurors find that a reasonable person would have waited to seek medical care based on the facts and circumstances of the case, they might find in favor of the plaintiff. However, prompt medical care after an accident is always in a person’s best interest.

Schedule a Free Consultation With Our Miami Personal Injury Attorneys

The steps you take after an injury or accident could have a significant impact on the outcome of your personal injury case. Our personal injury lawyers and legal staff provide guidance and support as you seek compensation for your injuries.