Mitigation of damages, also known as “failure to mitigate damages” is a legal concept that applies to personal injury claims. It is a partial defense that reduces the defendant’s liability for your damages.
By asserting a “failure to mitigate damages” defense, the defendant is claiming that you failed to reasonably limit the losses you suffered as a result of the accident that generated your claim. The reasoning is that the defendant should not have to pay for whatever portion of the losses you could have avoided through reasonable efforts.
Common Examples of Failure to Mitigate Damages
Some common examples of failure to mitigate damages include:
- Not seeking immediate medical treatment after an accident;
- Failing to follow your doctor’s instructions;
- Not wearing a motorcycle helmet prior to a motorcycle accident (this is a disputed area of Florida law); or
- Failure to seek alternative (less demanding) employment when an injury prevents you from returning to your old position.
Many other examples of failure to mitigate damages arise from time to time.
The Difference Between Comparative Fault and the Mitigation of Damages
When more than one party is responsible for an accident, Florida will apportion liability among the parties based on their percentage of fault. For example, Party A might bear 30% of the liability, while Party B might bear 70% of the liability.
So what is the difference between saying that Party A loses 30% of their compensation due to comparative fault versus saying Party A lost 30% of their compensation because they failed to mitigate damages?
The difference is that, in the first instance, Party A is 30% responsible for the occurrence of the accident itself (imagine a traffic accident, for example). In the second instance, Party A did not cause the accident but failed to minimize the consequences of the accident. In other words, they are 30% responsible for the consequences of the accident (suppose Party A failed to follow medical advice, resulting in additional losses that equal 30% of their total claim).
The “Reasonable Person” Standard
To properly mitigate your damages and thereby avoid deduction from your compensation, you don’t have to be perfect. Your actions must simply be in accordance with what a “reasonable person” would do under the same circumstances. But what would a “reasonable person” do? There is no definitive answer to this question.
In common parlance, however, behaving as a “reasonable person” simply means using your common sense. You don’t need a stroke of brilliance, only average competence.
How Affirmative Defenses Work
Failure to mitigate damages is an affirmative defense. The defendant must take the initiative to assert this defense, and they must shoulder the burden of proving it. The plaintiff doesn’t have to prove that they mitigated damages. Rather, the defendant has to prove that the plaintiff did not mitigate their damages.
The “Preponderance of the Evidence” Standard
The defendant must establish the plaintiff’s failure to mitigate damages by “a preponderance of the evidence.” In other words, by enough evidence to convince the court (usually a jury) that the likelihood that the plaintiff failed to mitigate their damages is greater than 50%. Even a 51% chance will be sufficient to defeat your claim.
How a “Failure to Mitigate Damages Defense” Might Play Out in Settlement Negotiations
Most personal injury claims resolve at the settlement table, not in court. However, at the settlement table, there is no judge to rule on the mitigation of damages defense. Accordingly, the parties must consider how they think a trial court would rule, and they must agree to a settlement on this basis.
Most of the time, the parties will agree to a settlement based on the magnitude of the risks they would face by continuing to trial.
A Seasoned Personal Injury Lawyer Can Help You Protect Your Claim
If you file a sizable personal injury claim against a defendant, you can expect them to fight back hard. Mitigation of damages is only one of several defenses that the opposing party might use to try to avoid liability. An experienced personal injury lawyer can help you defeat these defenses. Contact Lopez Law Group Accident Injury Attorneys today or call (727) 933-0015 to schedule a free consultation to discuss your claim.