What Does Mitigating Damages Mean?

November 29th, 2010. By Kristine B

“Mitigation of Damages”.

It’s a phrase used every so often in relation to lawsuits—or catastrophes: mitigating damages. But, many people don’t understand what mitigation of damages means. This week, Pleading Ignorance explains mitigation of damages and what it means to potential plaintiffs and, possibly, you.

Mitigation of damages means that a person should use reasonable care and diligence to avoid or minimize injury. That means that a victim (or plaintiff) should have done everything reasonably possible to avoid harm, or to at least minimize it. It does not mean that a plaintiff is required to move heaven and earth to avoid injury or harm, but it does mean that he or she must have done whatever is reasonable to avoid injury.

So, let’s take the example of a person injured in a car accident. If the person injured in the car accident does not obtain (or accept) necessary medical help following the accident, then any harm done as a result of not seeking medical help can be viewed as the victim’s fault—and perhaps not the fault of the other driver. It’s sort of like the “you can take a horse to water, but you can’t make him drink” adage. If you (as a hypothetical plaintiff in a car accident case) either refuse medical help or do not seek it out when you clearly should have, then you may be held responsible for it. If the horse doesn’t drink and gets dehydrated (or worse), who’s to blame? The horse.

So what might this mean for the plaintiff? Damages awarded to the plaintiff might be reduced if the defendant can prove the plaintiff did not seek appropriate medical attention.

It’s important to remember that the plaintiff must take reasonable action to seek medical help. Translation: there may be times when taking action is UNreasonable. Here’s an example—say the victim is involved in a car accident well out of city limits and has no cell phone or means of calling for help (we’ll say this is a hit and run accident, so the defendant has also not called for help). In this instance, there is no reasonable way for the victim to obtain medical help, so the defendant would most likely be held liable for all injury to the victim, even if that injury is worsened by lack of medical help.

Mitigation of damages does not just affect physical injury. Investors who don’t take action when they suspect their financial advisor of mismanaging funds might not recover all lost funds because they didn’t take action to lessen their losses. As soon as they suspected their financial advisor was mismanaging accounts, they should have taken action to prevent further losses.

Likewise, investors who don’t open their mail for a year and then discover they’ve been losing money for the past 10 months could be found to be at least partially responsible for those losses. Why? Because if they had opened their mail and taken action after the first couple of statements had indicated losses on their accounts, they might not have lost as much money.

In the US, victims are responsible for minimizing or avoiding damages even if they did not cause the initial harm in the first place.

Tags: Mitigating Damages, Pleading Ignorance

This was posted on Monday, November 29th, 2010 at 10:14 am and is filed under Pleading Ignorance . Feel free to respond, or trackback. Read our comments policy.