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The term mitigate damages refers to a doctrine most common in tort and contract law that a plaintiff’s monetary recovery (stemming from an injury or a breach of contract) can be reduced by the extent to which the plaintiff could have taken reasonable steps to avoid or “mitigate” his or her damages.
The doctrine of mitigation of damages 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.
The duty is sometimes referred to as the doctrine of avoidable consequences.
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.
If mitigating your damages costs money, you can recover compensation for those expenditures.
The party responsible for the accident will not be liable for your avoidable losses because he or she did not cause them. While they caused the accident, it is the victim who is in a position to minimize the fallout. If you fail to do so or actively inflate your losses, the law will hold you responsible for the results. It will not make the defendant pay for the avoidable losses.
The duty to mitigate damages ensures that the defendant only pays for losses that he or she 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.
The mitigation of damages is an affirmative defense. The defendant has the burden of proving that you did not take reasonable efforts to mitigate your losses.3
A personal injury lawyer from a reputable law firm can give you the legal advice you need to take reasonable action after the accident and avoid violating this duty.
What are some examples of the mitigation of damages?
Mitigating 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
- 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 and
- 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
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. 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.
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.7
Similarly, the duty to mitigate damages is common in real estate law, especially in landlord-tenant disputes. If a tenant vacates an apartment before his or her 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).
- See, e.g., 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.