What Is Failure to Mitigate Damages?
If you’re involved in a personal injury case, you may have heard the words duty to mitigate damages. But you may not know what it means or what it has to do with your injury case. To mitigate means to reduce or make less. Mitigating damages is a way that the plaintiff reduces their losses in an injury case by taking steps to minimize harm.
If you have a personal injury case, the other side may respond by saying that you failed to mitigate damages. Here’s what you need to know about mitigation of damages from our Las Vegas personal injury attorney.
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What Is the Duty to Mitigate Damages?
Duty to mitigate damages is the legal concept that a victim should do everything reasonable that they can to keep their losses from becoming worse. Mitigating damages means taking positive, proactive steps to reduce the total amount of harm that the victim suffers because of the accident.
For example, it may mean seeking medical treatment, securing damaged property from additional damage, and any other reasonable measures that would reduce the losses that the victim suffers because of a legal wrong.
Duty to Mitigate Damages in Personal Injury Cases
In a personal injury case, you might first hear the phrase duty to mitigate damages from the defendant. In their initial reply or in later court motions and trial briefs, they might accuse you of failing to mitigate damages. What they’re trying to do is reduce their own legal liability by claiming that you didn’t do everything that you could after the fact to minimize your injuries, losses, and damages.
The duty to mitigate damages might come up in a couple of contexts in a personal injury case. First, the other side might claim that you didn’t seek medical care soon enough after the accident. They might accuse you of failing to follow doctor’s orders for recovery. Another way that you could fail to mitigate damages in a car accident case is by not moving your vehicle to the side of the road after a car accident. Your car could get hit again by a distracted driver.
Is Failure to Mitigate Damages an Affirmative Defense?
Yes, failure to mitigate damages is an affirmative defense. The defendant has to raise the issue. The defense has to present the evidence that the plaintiff didn’t reasonably reduce damages. Once the defense raises the question of failure to mitigate damages, the plaintiff can refute it.
Do I Have to Buy Things to Mitigate Damages?
Yes, you may need to buy things to mitigate your damages. For example, if you have a sprained wrist, you might recover faster if you purchase and wear a sling. Under the law, you have to buy the sling to mitigate your damages because it’s the reasonable thing to do. You don’t have to take every possible step to mitigate your damages, no matter how time-consuming, inconvenient, or inexpensive it is. Instead, you have to take only those steps that are reasonable.
Who Decides What’s Reasonable When It Comes to Mitigating Damages?
The jury decides what’s reasonable when it comes to mitigating damages. Usually, you reach a settlement in your case long before it goes to trial. But if your case is in the small percentage of cases that don’t resolve before the jury trial, you respond to the defense and make your case to the jury that you did not fail to mitigate damages.
Example of Failure to Mitigate Damages – Nevada
An example of a Nevada court case involving failure to mitigate damages is the case of Dillard Department Stores v Beckwith, 1999. The plaintiff was a manager at Dillard. She hurt her back at work. She filed for workers’ compensation and received it.
Although her doctor had not cleared her, her employer asked her to return to work. When she did not, the department store got a new manager. They demoted the woman and lowered her pay. She brought a lawsuit for wrongful termination. The woman was in her 60s and near retirement at the time of her demotion. The department store claimed that the plaintiff failed to mitigate her damages by not looking hard enough for another job. The store claimed that she could have gotten other employment that would have reduced her damages by earning some income.
The court affirmed the lower court’s ruling. They said that the plaintiff testified that she applied to other department stores but wasn’t hired. They said that the jury found the plaintiff credible that she did her best to find other employment. In total, the jury awarded the plaintiff more than $3 million, including attorney fees.
How Can Failure to Mitigate Damages Impact a Personal Injury Claim?
Failure to mitigate damages can impact a personal injury claim because it may reduce the amount of compensation that you receive. If there is a genuine issue of whether you failed to mitigate damages, you may receive a lower settlement or a lower award at trial.
However, the defense may not have a sound basis to claim that you didn’t take reasonable steps to reduce your losses. If they claim without having the evidence to back it up, you should be prepared to respond aggressively to ensure that you get the compensation that you deserve.
Skilled Las Vegas Personal Injury Lawyers
Are you involved in a personal injury case that includes failure to mitigate damages? Any personal injury case is complex. But an injury case is especially challenging when the other side accuses you of failing to mitigate damages. Don’t be a victim twice. With our Nevada personal injury attorneys by your side, you can take the right steps to fight for justice.
A consultation with our legal team is always free. Let us help you understand your options under Nevada law and what you can expect in your case. If you work with us, we’ll fight until you have the compensation that you deserve. Call us today to begin.
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Con más de 31 años de experiencia luchando por víctimas de lesiones personales en el valle de Las Vegas, el abogado Adam S. Kutner conoce bien el sistema judicial de Nevada y cómo lograr que los clientes lleguen a un acuerdo de manera rápida y sin problemas.
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