MITIGATION OF DAMAGES IN PERSONAL INJURY

No one expects a person seriously injured in an accident to run a marathon or to bench press 500 pounds soon after the injury.  At the same time, the legal concept of mitigation of damages requires those injured to make reasonable best efforts to get back on their feet.

Mitigation of Damages

Mitigation of damages asks an injured person to exercise reasonable diligence and ordinary care in attempting to minimize their damages after an injury.  Due diligence requires the same efforts by the individual as that which would be used by a person of ordinary prudence under similar circumstances.  Mitigation of damages applies as an affirmative defense when the injured person fails to take reasonable actions that would tend to reduce the effects of the injury.

Malingerers

Insurance companies love the related concept of the “malingerer”.  They define this as the person who feigns the length or extent of their injury.  The accusation is that they consciously simulate mental or physical symptoms and prolong the process.

Mitigation of Damages applied to Injury Cases

Insurance companies often point a finger of blame that accident victims drag out or exaggerate their symptoms.  And some do.  But insurance company attempts in this area are often overreaching and fail.

Take the case of a police officer directing traffic after an accident and suddenly a utility pole fell, a cross-bar striking him in the head.  He was out of work for two years.  At trial, the judge refused to give requested jury instructions on mitigation of damages.  There was no actual evidence to contradict neurological evidence supporting the two year work absence.  The Massachusetts Supreme Judicial Court upheld the trial court’s refusal to give insurance company requests for mitigation of damages instructions.

Sure enough, mitigation of damages is a real defense.  For example if insurance company surveillance video shows an accident victim playing tennis or jogging when the individual testified at deposition that they were unable to engage in such activities of daily living, mitigation of damages is more likely to reduce any damages claim.

Duty to Mitigate

As in many areas of the law a test of what is reasonable applies to any duty to mitigate.  The law imposes a general duty to mitigate damages.  Those injured are obligated to exercise reasonable care and effort to avoid loss and to minimize damages.  Recovery can be precluded for losses which could have been prevented by reasonable efforts without undue risk, expense or humiliation.  Recovery can be allowed for expenses reasonably incurred to avoid or minimize damages.

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