What Is The Duty To Mitigate?

In California when a victim of an accident files a lawsuit, they also have the duty to mitigate. This duty is very important, and could possibly reduce the compensation you are to receive if you do not follow this duty properly.

What is the duty to mitigate?

In lawsuits, an injured person that is filing a claim against another negligent party has the duty to make sure that they prevent aggravating their own injuries. A plaintiff, which is a party who files the lawsuits, must minimize their injuries as much as possible. If they make their injuries worse, the compensation that they are trying to recover could decrease.

How do you mitigate damages?

A plaintiff has a responsibility to mitigate their damages as much as possible. Examples of ways in which a plaintiff must mitigate their damages are:

  • Seeing a medical provider: after an accident, it is very important that the victim of the accident get medical attention. Even if you did not call 911 right away, it is advised that you see a doctor at most 2 or 3 days after an accident. If you fail to see a doctor within a reasonable amount of time after the accident, then the defendant, which is the party the lawsuit is filed against, will bring up the fact that you failed to see a medical provider, and you made your injuries worse.


  • Surgeries: if a medical provider suggests a surgery, and you fail to take the surgery to get treated for your injuries, this could be used against you as a failure to mitigate damages. Defendant will raise the fact that you had the opportunity to fix your injuries with a surgery, yet you failed to do so.
  • Physical therapy: for injuries such as spinal cord injuries or back injuries, physical therapy sessions may be required. Missing your physical therapy sessions could be used against you in a lawsuit.
  • Medical equipment: sometimes, a plaintiff must have to buy equipment and spend money in order to mitigate damages. For example, if a plaintiff is required to have a knee brace, they must buy their knee brace in an effort to mitigate their damages.
  • Refusing to work: our car accident attorneys understand that after an accident it could be very difficult to resume back to normal life. This is especially true if you have suffered physical injuries that have made it difficult to go back to work. One of the most common damages in car accident claims are lost wages. Lost wages refer to the lost paychecks the injured victim was not able to get because they were out of work. But, if the victim has only suffered minor injuries, and was cleared to go back to work from their doctor, yet refused to go back to work, they will not be able to collect lost wages from the point they were considered to be cleared to go to work.

As seen above, there are several different ways that a plaintiff should mitigate their damages. For more information, contact our car accident attorneys at Megeredchian Law today to see how we can help you mitigate your damages in a lawsuit.

How could a failure to mitigate damages be used against me?

Each defendant has the ability to raise a defense legal theory. Defenses could range from assuming the risk to mitigating damages. Mitigating damages are one of the most common affirmative defenses raised in accident lawsuits. Once the defendant raises the issue that the victim failed to minimize their damages, the victim must show how they met all the requirements for treating their injuries.

What kind of damage could be mitigated?

Injuries: injuries must always be mitigated by seeing a medical provider. This is especially true for injuries such as traumatic brain injuries and spinal cord injuries. With traumatic brain injuries, there may be a buildup of fluid in your brain after the accident. The longer you wait, the more damage that this buildup of fluid could do. You could potentially suffer with permanent brain damage if a brain injury is not treated properly. The same goes with spinal cord injuries, if these injuries are not treated properly, you could risk numbness, or paraplegia.

How can failing to mitigate damages affect my lawsuit in California?

If you fail to mitigate your damages, it will most probably affect your lawsuit. It will reduce the amount of compensation you could receive from the negligent party.  This applies for both settlements and trials.

  • Settlements: a settlement occurs when both parties come together to try to negotiate a final amount. This is considered a settlement amount, and the lawsuit will not go to trial. During the settlement negotiations, the other side could make it a big deal that you failed to mitigate your damages, for example failing to undergo the surgery that you were required to do.

  • Trials: trials take place when a settlement amount is not negotiated. During trial, the defense may raise the issue that the victims failed to get medical assistance when they should have. The jury then needs to take this into consideration when determining the award amount you are to receive.
Who decides how to mitigate damages?

We know each person may seem to have their own view as to how a damage could be mitigated. For example, sometimes a surgery may be required, whereas in other circumstances, a surgery may only be recommended. In the case of a trial, the jury member will listen to the entire story and facts about the accident. They will then decide whether the plaintiff mitigated their damages or failed to mitigate their damages. However, this is based on a reasonable person’s standard. This means that the victim must take steps that are reasonably necessary to make sure that they mitigate and minimize their damages as much as possible.

Contact Our Car Accident Attorneys Today

There are several responsibilities that a plaintiff must have to meet and abide by in a personal injury lawsuit. Failing to take just one of these responsibilities could risk getting a plaintiff’s entire case thrown out. That is why we recommend that you speak with our experienced car accident attorneys after you have been involved in any accident. Whether you have been involved in a car accident, motorcycle accidents, bus accident, construction accident, Metro accident, etc., we recommend that you speak to our highly-qualified lawyers as soon as possible. Our lawyers have several decades of experience representing injured victims that have been involved in all types of accidents.

We offer free consultations where we will discuss the different steps you can take for your specific lawsuit. Although there may be several pages on the web that describe the steps you should take after your accident, please note that no two accidents are the same. There may be several factors involved, given the parties involved, where the accident took place, and the severity of the injuries. There are several different factors that you must keep track of, which also include time limits on filing a lawsuit. For example, waiting longer than two years could have your lawsuit dismissed in court. For any questions or concerns, you may have, contact us today.

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