Mitigation of Damages

Mitigation of damages is sometimes referred to as the doctrine of avoidable consequences. The doctrine requires a plaintiff who is injured by a defendant to take steps to minimize his damages. It applies after the defendant commits the tort but at a time when the plaintiff still has an opportunity to avoid at least part of the consequences.

Plaintiff’s duty to mitigate

The mitigation rule imposes a duty upon a plaintiff to use ordinary care and reasonable diligence to minimize damages and to avoid aggravating damages.

Application of the mitigation rule

The mitigation rule applies for injuries to a person or to property in an action for a tort or for breach of contract.

Reasonableness standard

Generally, plaintiffs may use their own discretion in dealing with their injuries. However, such discretion does not allow the plaintiff to stand by and watch his losses accumulate so as to seek larger damages from the defendant who caused the injury. Instead, courts impose a reasonableness standard upon the injured plaintiff. He must expend at least a minimal effort or expense to minimize losses if it is reasonable under the circumstances to do so. He is not required, however, to go to extraordinary lengths, spend sums beyond his means, or put himself in danger in order to minimize damages.

The determination of whether the plaintiff’s attempt at minimizing damages was reasonable requires courts to consider the amount of time between the injury and the plaintiff’s mitigation efforts, the plaintiff’s awareness of the need to minimize losses, the opportunities for the plaintiff to mitigate damages, the expense of mitigating damages, and the plaintiff’s finances.

The fact that the plaintiff failed to minimize the damages after attempting to do so does not prove that he did not use reasonable means in his attempts.

Burden of proof

A defendant has the burden of proving that the plaintiff failed to take reasonable steps to minimize damages, that the damages could have been avoided, and that the avoidable damages can be measured with reasonable certainty.

Effect of mitigation rule

If a plaintiff fails to reasonably attempt to mitigate his damages, any damages that are awarded to him will be reduced by the amount of damages that he could have avoided.

Recovery of costs

A plaintiff who takes reasonable measures to minimize damages may recover the reasonable costs that were expended in doing so, even if his mitigation attempts failed or increased his losses.

“Self-inflicted” wounds

Some jurisdictions consider certain actions by a plaintiff as evidence that he created “self-inflicted wounds” for which his award of damages should be reduced. Such self-inflicted wounds include failure to obtain medical treatment and failure to use protective gear.

The plaintiff must exercise reasonable care in promptly obtaining medical treatment for his injuries, following a doctor’s instructions, submitting to reasonable testing or surgical procedures, and keeping follow-up appointments.

States differ as to their admission of evidence of the plaintiff’s nonuse of protective gear, such as a seat belt or motorcycle helmet, to show that the plaintiff failed to mitigate damages. Some states do not allow such evidence because it relates to the plaintiff’s action before the defendant’s tort took place.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.