California law makes it quite clear that plaintiffs have a duty to mitigate their damages and “will not be able to recover from any losses which could have been thus avoided.” You can find more on this in the California Civil Jury Instruction (CACI) 3930. California law recognizes that every situation is different, and the actions you are required to take to mitigate damages depend on a variety of external factors.
For instance, if you have access to resources such as time and money, what constitutes ‘reasonable’ in your case will be very different than what is considered reasonable for a plaintiff with no resources.
This is a good thing for plaintiffs who are stretched for resources because the jury will take their difficult situation into account. Secondly, the damages that you recover include the amount you spent to mitigate your damages. For example, suppose you spend $200 on an action that decreased your losses by $300. You should be able to collect the $200 as part of your total damages.
The term mitigate means to ‘lessen’ your damages. Damages encompass a range of issues, including physical and financial, that plaintiffs can request for compensation.
However, to qualify, victims most demonstrably prove that they mitigated their damage, which may the following:
- Lost wages
- Pain and suffering
- Loss of earning potential
- Medical costs
The Burden of Proof is on Defendants – not plaintiffs
One of the go-to defense strategies for defendants is to push claims that the plaintiff did nothing to mitigate their damages. If proven successful in court, this will reduce the defendant’s damage liability – it won’t absolve them of their obligation.
That being said, the burden of proof lies squarely on the defendant. They have to demonstrate that the plaintiff failed to mitigate their damages. If they cannot provide evidence, the court will assume the victim took all necessary steps to mitigate damage.
This means that personal injury plaintiffs must make every reasonable effort and expenditure to resolve and minimize injuries. The exact duties of the plaintiff differ based on their circumstances. For instance, plaintiffs who haven’t had significant injuries to their health need not seek medical care. On the other hand, plaintiffs who have sustained severe health injuries must seek medical care to satisfy their obligation to mitigate damages.
“Why should I have to take any steps? I wasn’t at fault!” you may be thinking. But laws are trade-offs between bad outcomes for the worst results. As a community, we want everyone to act responsibly – being on the receiving end of an injury does not excuse reckless behavior. Here’s an example of someone failing their duty to mitigation:
- A construction worker gets into a severe accident at work. His injuries force him out of work for a month, and he spends one week at the hospital. At this point, his employer may be footing the medical bill and the month’s worth of lost wages. But his physician confirms that he should be able to return to work after a month. Instead, the man decides that he’ll kick back, relax, and sue for ‘lost wages.’
His lawsuit will not be entertained in a court of law. Most juries do not take kindly to victims who display manipulative behavior and take advantage of their injuries. The construction worker, and his employer, is better off if he returns to work.
Behaviors like this can prevent plaintiffs from recovering their damages that they would otherwise deserve for their injuries.
It is worth pointing out that plaintiffs won’t be completely deprived of their compensation. They should still recover certain kinds of damages, such as the medical bills and the time during which they were out of work. However, anything beyond this – and anything caused due to failure to mitigate damages – will have to be covered by the victim.
As a general rule, the defendant should not prove that the plaintiff could minimize risk and damage. If the courts accept their proof, the jury is more likely to rule that such actions lie within the plaintiff’s obligation to mitigate damages.
What Constitutes Reasonable Action?
The reasonableness for any situation can be measured objectively, such as using a simple cost-benefit analysis of the plaintiff’s options. Unfortunately, an element of ambiguity associated with reasonableness means that what is reasonable for any person depends on their situation, as mentioned earlier.
That said, the courts do not expect plaintiffs to go above and beyond to mitigate damages. The bare minimum requirements for plaintiffs are to take the steps that any responsible person would take to reduce damage.
While we acknowledge that every situation is different and is based on the specifics of your injury and treatment options, here are a few steps that apply in most cases:
Go to work as soon as you can
Go back to work once your medical professional gives you the clearance. Do not go back to work earlier unless you get approval from your doctor. In case you lost your job due to the injury, try your best to a new one. Make sure to document your job search.
Go to therapy, and be consistent
Often, plaintiffs go to physical rehab only to get caught up in daily life and stop going. Unless you receive clearance from your therapist, you’re not done healing.
Avoid activities that could aggravate your injury
If your physician told you to avoid alcohol, not play sports activates, or not drive for long sessions, you have to heed their advice. It may seem unfair that your activities are limited, but this is what you need to do to fulfill your duty of mitigation.
Below, we’ll discuss a few examples of how a plaintiff could be accused of failure to mitigate.
1. Not Seeking Employment
An injury at work may lead to hospitalization, and it’s possible that you may not be able to return to your current job. This doesn’t mean that you have to stay unemployed. In this situation, your duty is to mitigate damage by seeking employment elsewhere. The defendant could reduce the damages they are liable to pay if they can prove that you didn’t make any effort to find work when it was available.
For example, a construction worker who lost his job due to an injury could have his damages reduced if he failed to seek new work, attended interviews in inappropriate clothing, or turned down employment offers that provided similar wages that he earned at his prior role.
While it is true that job markets aren’t always accommodating, you must still demonstrate to the courts that you did all you could to find a job. This means you should keep logs of interviews for jobs you applied to. The point being, you have to expend every effort into finding work to mitigate damage.
2. Property Damage Mitigation
In the case of car accidents, it is your duty to get your vehicle repaired in a reasonable amount of time to prevent additional damage. For example, if your windshield gets broken and you don’t fix it before rainstorm damages the car’s interior, then you won’t be able to claim that cost. Suppose you fail to mitigate damages in your case. In that case, the defendant could successfully argue that you didn’t take reasonable steps to minimize your losses, which will reduce the amount you receive.
3. Real Estate Mitigation
Imagine a scenario where a tenant refuses to pay their rent but promises to do so if the landlord would reduce the rent by 50%. The landlord, for apparent reasons, declines the offer and evicts the tenant. The landlord decides to pursue damages against the tenant for the last six months of rent, and the tenant defends their actions by claiming that the landlord didn’t mitigate their damages.
The tenant claims that the landlord should only receive half of their delinquent rent because they refused to take 50% of the rent. In this case, the tenant is at fault for breaching the lease action.
Landlords are entitled to the unpaid rent for the balance of the lease term. When courts analyze reasonable mitigation efforts, they have always held that landlords cannot be denied recovery only due to failure to renegotiate the lease.
Furthermore, barring a few exceptions, a landlord’s obligation to mitigate future damages only comes into effect after possession of the premise is returned to them. Even then, the law only requires landlords to take reasonable steps to mitigate their damages and find a replacement tenant. Moreover, the mitigation defense does not require landlords to renegotiate its lease with a guilty tenant.
5. Avoiding Medical Attention
During an injury, it is crucial to seek medical attention as soon as possible. Failure to do this can reduce the damages that you are entitled to. Worse still is the fact that it could worsen your injury. This will increase your treatment costs and reduce the amount you can claim – it’s a lose-lose situation. It is highly recommended to seek medical attention even if your injuries aren’t significant. This will strengthen your claim that you did everything in your power to mitigate damage.
6.Ignoring Professional Advice
It is essential to accept medical advice that your doctor gives you. Failure to follow instructions to the dot could play a role in reducing the amount you are entitled to. The defendant will try to prove that you didn’t follow medical advice, which led to your injury’s worsening. For example, if you sprained your ankle and failed to take therapies recommended by your physician, it will reduce your damage.
As a plaintiff, it is required of you to not only seek medical attention but also follow the recommended steps to improve your situation and reduce damage
7. Choosing to Not Have Surgery
In some severe cases, you may be required to undergo surgery to treat an injury. While you are not legally obligated to undergo surgery and no one can force you to do so, it could reduce your damages claimed if your doctor recommends surgery.
You cannot claim damages for a permanent injury if the injury could have been mitigated with surgery – as long as any ‘reasonable person would be willing to participate in it.’ Courts and juries will evaluate whether the proposed surgery would have cured or reduced the injury, and they will also assess if it would have helped you get back to work.
Evaluating the Risks of Surgery
One of the factors that courts will consider when plaintiffs choose to forego surgery is the risk of death or further injury. While injured people have a duty to mitigate damages, they have a right to waive surgical procedure if the risk outweighs the benefits. For courts to determine if the plaintiff mitigated their damages, they must consider the probability that the surgery could have:
- Reduces the damage
- Reduce complications due to the injury
It is worth pointing out that the risk of anesthesia is not high enough for plaintiffs to reject injury. If the surgical procedure carries little risk, the plaintiff must accept the treatment option if they want to fulfill their duty to mitigate damages.
Choosing Alternative Treatments
Unless your physician recommends alternative treatment, opting for one could jeopardize your claim in court. Alternative therapies are those that fall outside of the scope of modern medicine, which may include chiropractic care, acupuncture, and homeopathic medicine.
In most cases, it is allowed to use these treatments alongside traditional therapies – if your physician agrees.
In cases where your injuries were severe, and you decide to seek non-medical treatment instead of going to a qualified physician, the courts may determine that you failed your duty to mitigate.
Discuss Your Case With Skilled San Francisco Personal Injury Lawyers
The duty to mitigate your damage is just one of many factors used to decide an injury claim in your favor. If you’ve involved an injury accident and are curious about your responsibilities as a plaintiff and the strength of your case, make sure to get in touch with a personal injury attorney in San Francisco, California.
At Phoong Law, our attorneys will answer any questions you may have and advise you about the best path in resolving your case and recovering the damages you deserve.