Personal injury Library

What is the Plaintiff’s Duty to Mitigate Damages?

The injured party has a duty to mitigate their injuries following an accident.

If you've read our main page on defenses (be sure to click here for our Comprehensive Guide on Defenses, you've probably figured out that most of these arguments seek to place blame for the accidents on victims for one reason or the other. But there's another way a defendant can try to reduce the value of your case that has nothing to do with who was at fault: your failure to mitigate damages.

Questions answered on this page:

  • What does it mean to mitigate damages in a Texas personal injury case?
  • How do I make sure that I mitigate damages?
  • What are the consequences of failing to mitigate damages?
  • How does an experienced Dallas-based attorney help me win?

The basic concept here is that, after you've been injured, you must take reasonable steps to alleviate the consequences. "Why should I have to? The accident wasn't my fault!" you may well be thinking. But laws are always trade-offs between bad things and worse things. As a society, we want everyone as active and industrious as possible---and anything that creates incentives the opposite is to be discouraged. An example of what we're talking about:

  • A man gets into a serious truck accident. Because of his injuries, he's in the hospital for a week and out of work for a month. At this point, the trucking company may well be on the hook for his medical bills and his month's worth of lost wages. But his doctor informs him after a month that he can return to work. The man decides that he'll just sit at home, watch TV, and sue for any "lost wages" he can get. Should we really allow the man to do this? No. It's better for everyone if he returns to gainful employment.

Failure to mitigate your injuries may prevent you from recovering the entire amount of compensation you deserve for your injuries. Juries don't look kindly on victims who even give the appearance of trying to game the system for money the don't deserve. So while you might be doing all you know to do, you might be missing some things that could later hurt your case.

How Do I Make Sure I Am Mitigating My Damages?

While we can't give direct advice to you on specifics if we don't know the details of your injuries and treatment options, here are some general thoughts:

  • Go back to work as soon as you can. Some day, your medical records will become part of the court record. It's important that you listen to your medical professionals about when it's OK to return to work. Obviously, don't go back to work early, but if you're able and given approval by your doctor, get to work. If you lost your job because you were out of work, try your absolute best to find another one. Document your job search.
  • Go to therapy. We've seen this a great deal---victims go to physical rehab a few times, then get caught up in their daily lives and stop going. Your therapists give you tasks to do for a reason: you're not healed yet.
  • Don't do anything that could risk your recovery. If your doctor told you not to play basketball with your kids, drink alcohol, or drive for long periods of time, you're best to heed their advice. It's not fair that you're limited from doing what you want to, but "that's the breaks" for mitigation purposes.

The above is pretty common sense stuff, but accident victims can fall prey to the temptation to ignore it. No one is perfect, so it's not like if you missed one of your 20 therapy sessions your case is over. But do what you're told and you should be fine.

Potential Consequences for Failing to Mitigate Your Damages.

If you fail to mitigate your damages, the judge in your case may decrease the amount of compensation you can recover from the defendant for your injuries. However, it's important to note that failure to mitigate your damages is not necessarily a complete bar to recovery; rather, failure to mitigate your damages will only reduce the compensation you can recover from the defendant, as the court will adjust your award to reflect the portion of your injuries for which the defendant is responsible.

How this would work out depends on your injuries and any real failures to mitigate. Still, let's say that after a car accident, your back needs $20,000 worth of surgery. Ignoring your doctors instructions, you go play tackle football with some buddies. Any damages you incur above the $20,000 surgery to your back will be on you, not the defendant.

Best Practices for Mitigating Your Damages.

As you can see, mitigating the injuries you've suffered caused by someone else's negligence or recklessness is extremely important not only to your health, but to ensuring that you are fully compensated for your injuries. To achieve these goals, you should be sure to do three things: seek medical attention as soon as possible, take care to stabilize and not aggravate your injuries, and contact the experienced personal injury attorney at Grossman Law Offices. Our attorneys have more than two decades of experience representing personal injury victims, and are available any time, day or night, to provide a free consultation regarding your injuries and what you might need to do to mitigate your damages. Call us at (855) 326-0000.

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