Mitigate Damages

The failure to mitigate damages, or the “doctrine of avoidable consequences,” is a defense against a personal injury or contract claim. It applies throughout the United States in one form or another. This defense asserts that the claimant unreasonably allowed avoidable damages to accumulate and that the defendant should not bear liability for avoidable damages. The “failure to mitigate damages” defense is popular both in court and at the negotiating table.

How Much Compensation Do You Receive When You Fail to Mitigate Damages?

How Much Compensation Do You Receive When You Fail to Mitigate Damages?

A court will not ask what your damages are as a consequence of your failure to mitigate them. It will ask what they would have been if you had mitigated them the way a “reasonable person” would have. You will receive only that much, no matter how much your actual damages amount to if the defense is successfully asserted.

Failure to Mitigate Damages Is an Affirmative Defense

No matter how obvious the issue is, failure to mitigate damages is an affirmative defense that the defendant must raise with the court. This defendant must also prove this defense. The defendant’s burden of proof is a “preponderance of the evidence”, meaning enough evidence to establish that it is “more likely than not” that the claimant failed to mitigate their damages.

The “Reasonable Person” Standard

The failure to mitigate damages defense relies partly on the “reasonable person” standard used across the legal spectrum. A “reasonable person” is a fictional character who always acts reasonably and prudently. 

To determine whether the defendant failed to mitigate damages, ask what a reasonable person would do in that situation, and compare it with what the claimant actually did. If the claimant’s conduct fell short, the failure to mitigate damages defense is likely to prevail. Ultimately, it’s a judgment call that is highly dependent on the specific facts involved.

Common Instances of Failure to Mitigate Damages

Many behaviors might constitute a failure to mitigate damages. Below is a description of some of the most common.

Refusing to Seek Medical Treatment

You have the right to refuse to seek medical treatment, even if you suffered an injury. The only way you would likely be overruled would be if you were a minor (under 18) or if you were not of sound mind. You might refuse medical treatment, for example, while dazed after a head injury. If you refused medical treatment while you knew what you were doing, however, you probably failed to mitigate your damages.

Delaying Medical Treatment

People sometimes delay medical treatment after an accident. It is possible that a court might find this reasonable if you experienced no symptoms of injury until later (and you sought medical treatment as soon as you began experiencing symptoms). This sometimes happens with soft-tissue injuries. Even then, your delay can open up other defenses for the insurance company.

Disobeying Your Doctor’s Orders

Following a catastrophic injury, for example, Florida would expect you to strictly follow your doctor’s recommendations. If you fail to take your medication, for example, a court might refuse to compensate you for the extent to which your condition worsened due to your failure to take your medication. 

Choosing Not to Have Surgery

As long as you are an adult, you have the right to choose not to have surgery. Every surgery involves a certain amount of risk, especially surgery that requires general anesthesia. You might, for example, suffer from a phobia of going under general anesthesia. The question is whether a reasonable person would refuse surgery on this basis. 

If you refused surgery out of fear of going under general anesthesia, a court would be unlikely to sympathize with you. So what if you refused surgery because the doctor told you it had a 10% fatality rate? Under such circumstances, a court might decide that your refusal to have surgery was reasonable. 

Failure to Seek Employment

Lost earnings are a major component of damages in many personal injury claims. You will certainly have to take time off work while you are in the hospital and probably afterward while you are recuperating at home. If your injuries affected your ability to work, you might even have to quit your job and seek less demanding employment.

You could get into trouble, however, if it appears that you are using your accident as an excuse to avoid working. If you are able to perform less demanding work, you should be actively seeking a new job. Failing to do so will not disqualify you from receiving compensation for the income you already lost. It might, however, prevent you from receiving compensation for earnings that you lost after you should have returned to work. 

Failure to Observe Reasonable Safety Precautions Prior to an Accident

A claimant is responsible for observing reasonable safety precautions before an accident. In a motorcycle accident, for example, you might lose compensation if you suffered head injuries because you didn’t wear a helmet.

Talk to a Personal Injury Lawyer

If you suffered an injury and anticipate a “failure to mitigate damages” defense, you probably need an attorney. In many cases, an insurance company will assert this defense in settlement negotiations. An experienced personal injury lawyer can handle themselves in negotiations with an insurance adjuster.