The legal issue of mitigation of damages often arises in San Antonio personal injury cases. When someone is injured, even when that injury is someone else’s fault, the injured person is expected to take reasonable steps to minimize the harm they suffer. Claimants have a legal duty to mitigate damages, and if they don’t, they can jeopardize their personal injury claim. You should speak to an experienced personal injury attorney to protect your legal rights.
What Is the Mitigation of Damages?
Mitigating means minimizing. Damages are the financial losses and physical harm that someone suffers. Mitigating damages, therefore, means doing what is reasonably necessary to minimize their financial losses and physical harm. You must take steps to prevent your situation from getting worse. Mitigating damages stems from the concept that an injured party should not be able to accumulate unnecessary costs and expenses after an accident or receive a windfall just because they were injured. Mitigating damages could involve taking steps to prevent your injuries from getting worse, obtaining necessary medical treatment, and preventing additional damages from accruing. The mitigation of damages helps the accident victim recover faster and avoid accruing additional costs and expenses.Texas Law on the Mitigation of Damages
Texas law imposes a legal duty on a claimant in a personal injury case to mitigate or avoid damages. The claimant must act reasonably when handling their injuries and damages and take reasonable steps to mitigate their damages after an accident. According to Texas common law, personal injury victims have the responsibility of exercising reasonable care to minimize damages if this can be done with a “slight expense and reasonable effort.”How Mitigation Works
Injured parties are not expected to take every possible step to minimize their damages. Instead, they are expected to take reasonable steps. If the steps are particularly inconvenient or expensive, they might not be considered reasonable or necessary. For example, if an injury victim fails to seek medical attention promptly after an accident or to follow their doctor’s orders for treatment, the defense may argue that they breached their duty to mitigate damages.When Does the Mitigation of Damages Apply?
The mitigation of damages is an affirmative defense. The insurance company or defendant can argue this as an affirmative defense, meaning that the defendant asserts it as a defense in a case that is filed against them. It does not automatically apply. The defense must proactively assert this defense. If they don’t raise it in a timely manner, they can effectively waive it. The plaintiff can present evidence about their damages. The defense can then counter the award of these damages by claiming that the plaintiff failed to mitigate their damages and presenting evidence of this. The defendant effectively argues that they shouldn’t have to pay additional damages that could have been avoided. The defendant has the burden of proof of establishing the plaintiff’s failure to mitigate damages. At the conclusion of the trial, the judge instructs the jury on the plaintiff’s duty to reasonably mitigate their damages. The judge or jury in the case ultimately determines if the injury victim acted reasonably to mitigate their damages. If the factfinder determines your actions were reasonable, your damages will not be reduced. However, if the jury believes you were partially responsible for your damages, they will assign a percentage of blame to you and then reduce your damages by that degree of fault. If more than half of the blame is assigned to you, you will not recover any compensation.How Can I Mitigate Damages in Texas?
Fortunately, you are in control of some aspects of your personal injury case, including how you mitigate your damages. Remember, mitigating damages means that you take reasonable steps to minimize the amount or occurrence of damages, such as:- Moving your vehicle out of the path of danger if you are involved in a motor vehicle accident
- Seeking medical treatment immediately after the accident
- Receiving timely follow-up care
- Following your doctor’s treatment plan
- Keeping all of your medical appointments
- Listening to your doctor’s instructions, including not working
- Buying assistive medical devices, such as crutches
- Completing physical and occupational therapy, if you are referred for it
- Finding alternative transportation to get to work if your vehicle is out of commission due to an accident
- Seeking replacement employment if you lost your job because you were unable to work
Documenting the Mitigation of Damages in Texas
Anticipating the argument of mitigating damages means that you need to do things besides mitigate damages. You need to document how you have done so. You might be able to document your attempts to mitigate damages by:- Keeping all of your medical records, including logs of doctor appointments, therapy sessions, receipts for medications, imaging tests, and doctors’ notes
- Retaining employment records showing that you missed work due to your injuries
- Maintaining a print or digital calendar with all of your medical appointments listed on it
- Keeping a journal in which you document your healing journey
- Keeping a spreadsheet with all of your attempts to find new jobs, if applicable