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The term mitigate damages refers to your duty to minimize your losses in the event you are injured or cheated. Otherwise, any payout the court awards you will be reduced by the losses you would have been spared had you taken reasonable steps to “stop the bleeding.”
The doctrine of mitigation of damages – also called the “doctrine of avoidable consequences” in tort and contract law – is often invoked by the defense to reduce or eliminate any award of damages.
Do I have a duty to mitigate damages?
If you were hurt in an accident, you have a duty to mitigate your damages. You are expected to take reasonable precautions to mitigate the consequences of the accident.
If you do not take these precautions, you can accumulate expenses that you would not have otherwise had. The at-fault party may not be liable for these losses.
If mitigating your damages costs money, you can recover compensation for those expenditures. An example would be purchasing a cane to help you walk after a slip-and-fall: The defendant could ultimately be liable to reimburse you for that mitigation measure.
Reasonableness
You only have to take precautions that are reasonable for your circumstances at the time of the accident. The reasonableness of those efforts is mainly based on your ability to reduce the damages without undue risk or hardship.1 You do not have to
- take extraordinary measures or
- sacrifice important rights to mitigate your losses.2
You must, however, use the common sense of a reasonable person in seeking care after an accident. Deliberately running up your expenses violates your duty to mitigate your damages.
Burden of proof
The mitigation of damages is an affirmative defense. The defendant (be they the at-fault party or an insurance company) has the burden of proving that you did not take reasonable efforts to mitigate your losses.3
What is the purpose of mitigating damages?
The duty to mitigate damages ensures that the defendant only pays for losses that they caused.
- Requiring them to pay more would be unfair.
- It is also designed to prevent you from recovering a windfall.
If you were allowed to recover compensation for these losses, it would encourage accident victims to let the costs of the accident spiral out of control.
What are some examples of failing to mitigate damages?
The failure to mitigate damages can take a variety of forms. It will depend on the specific facts of the accident.
Some examples include:
- in a wrongful death claim after a car accident, the victim died after refusing medical care because the medical attention would have gone against his religious beliefs,4
- an accident victim had the ability to continue earning money by doing light duty work but refused to seek employment,
- a victim of medical malpractice did not go to physical therapy in order to alleviate the facial paralysis caused by her surgeon’s mistake,5
- a nursery lost $17,000 in plants when excavators destroyed a pipeline that provided the business’ water, but failed to spend $600 to convey water through a different pipe and save some of the plants, 6 and
- a work injury victim who hurt his eyes defied doctors’ orders by not wearing glasses, which caused his condition to get worse.7
In all of these cases, the injured party could have taken reasonable measures to reduce their losses. However, they did not make use of them.
How is this different from contributory negligence?
Mitigating damages is similar to a shared fault rule like contributory negligence. Both reduce your compensation because of something that you did.
However, shared fault rules reduce your award for your negligence before the accident. You lose compensation for being partially to blame for the accident happening.
In contrast, damage mitigation reduces your award for your conduct after the accident. You lose compensation for not taking reasonable steps to stop your losses from accumulating.
What compensation am I entitled to receive?
In a personal injury case, you are entitled to recover all of your losses that stem from the accident. Generally, this includes things like:
- medical bills, including reasonably anticipated expenses for future medical treatment,
- lost wages and other income,
- lost earning capacity, if the injury leaves you unable to work at full capacity in the future,
- pain and suffering,
- loss of life’s enjoyments,
- loss of consortium for your family, and
- property damage.
The amount that you recover can be reduced if these losses could have easily been avoided.
Is this duty confined to personal injury cases?
No, the duty to mitigate damages is not relegated strictly to personal injury, or tort, cases. It is also a defense
- in contract law and
- in some real estate cases.
Contract law
An example of the duty in contract law is when one party breaches the contract. The other party is not allowed to accumulate expenses and then try to recover all of them in a lawsuit for a breach of contract.8
For example if you re-possess a car you sold because the buyer stopped making payments on it, you as the creditor should try to sell it to someone else. If you try and fail to sell it, you can seek the full amount of what you are owed; but if you never try to mitigate your damages, no court will award you the full amount that the buyer cheated you out of.
Real estate law
Similarly, the duty to mitigate damages is common in real estate law, especially in landlord-tenant disputes.
If a tenant vacates an apartment before their lease has expired, the landlord can collect the unpaid rent on the lease. However, the homeowner or landlord must in good faith take reasonable diligence to find a new tenant to replace the departing one.
The landlord is not allowed to just sit back and collect rent from the old tenant. Instead, the landlord has to mitigate the damages by finding a new tenant as soon as possible.
Legal References:
- See California Civil Jury Instructions (CACI) No. 3930.
- Seaboard Music Co. v. Germano, 24 Cal.App.3d 618 (1972).
- See Jackson v. Yarbray, 179 Cal.App.4th 75 (2009).
- Christiansen v. Hollings, 44 Cal.App.2d 332 (1941).
- Lemons v. Regents of University of California, 21 Cal.3d 869 (1978).
- Green v. Smith, 261 Cal.App.2d 392 (1968).
- Cody v. State of New York, 82 AD3d 925 (2011).
- See, for example, Rockingham County v. Luten Bridge Co., 35 F.2d 401 (4th Cir. 1929).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.