If you are injured in an accident, you have a duty to mitigate your damages. This means that you are expected to take reasonable steps to protect yourself from further injuries and financial losses. If you fail to mitigate, you can face problems in your personal injury claim. If you have legal questions, then it is important that you speak to an experienced attorney.
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The Duty to Mitigate Damages Explained
After an accident, an injury victim might sustain “damages.” These damages may be economic or non-economic. Economic damages compensation for financial losses, such as medical expenses, lost income, etc. Non-economic damages cover non-financial losses, including pain and suffering and emotional distress. An injury victim is entitled to recover all their damages from the party that injured them.
However, an injury victim is not allowed to rack up unnecessary expenses related to their accident or decline affordable medical care that could improve their condition. Florida law imposes a duty to mitigate damages on accident victims. Injury victims must take appropriate steps to reduce the extent of their damages after an accident.
An injury victim can mitigate by seeking prompt medical attention, aftercare, and/or rehabilitation therapy. A victim does not have to take every conceivable step to mitigate their damages. They only have to take reasonable steps to avoid further losses after an accident.
Who Decides Whether An Injury Victim Failed to MItigate?
A jury will ultimately decide whether an accident victim acted reasonably in mitigating their damages after an injury. Common sense will often tell you whether a precaution is reasonable to prevent further injury or harm.
If a precaution is economical and minimally inconvenient, it might be a necessary step to mitigate losses. For example, buying and wearing an ankle brace after a slip and fall is affordable and not inconvenient. Therefore, it would be reasonable to do. Alternatively, an injury victim would not be required to agree to a risky treatment to improve their health.
What if Someone Fails to Mitigate Damages?
In personal injury cases, an injured party should seek medical attention and follow doctor orders for treatment. This can include taking required medication, doing necessary physical therapy, and taking other steps to ensure a quick recovery.
If an injury victim fails to mitigate their damages, then the court can reduce their damages. The failure to mitigate damages is an affirmative defense. An affirmative defense is a written response to a lawsuit that states why the plaintiff should not win their case.
In Florida, affirmative defenses are typically raised at the beginning of a lawsuit, or else the defense is waived. If a defendant claims that the plaintiff failed to mitigate their damages, then the defendant must prove their claim.
Do I Have to Take on Extra Expenses to Mitigate Damages?
Possibly, mitigating long-term damages might come with some extra short-term costs. Don’t shy away from proper medical care because you don’t want to be billed for it.
As discussed above, you may need to take on additional expenses to mitigate your damages if they are affordable. You might need to purchase slings, braces, or casts to help you recover from your injury. Likewise, you might need to purchase medications to help improve your condition.
The steps you take after you suffer an injury can significantly affect your claim. Make sure you take reasonable precautions to avoid further injuries and losses after your accident.
Comparative Fault Versus Mitigation
Florida follows modified comparative fault rules for cases involving shared fault. These rules will reduce a victim’s compensation to account for their share of fault for an accident. The reduction is based on the percentage of the victim’s fault. If an accident victim is 20% at fault, they can only take home 80% of their damages. Further, under state law, accident victims are barred from recovering damages if they are 51% or more at fault.
Comparative fault is different from the duty to mitigate. Comparative fault reduces a defendant’s liability for your damages based on your contributions to the accident. The duty to mitigate is an affirmative defense that reduces your damages based on your failure to minimize your losses after an accident.
Mitigation doesn’t reduce a defendant’s liability; it reduces the portion of damages they owe you — even if they are 100% at fault for the accident.
Contact a Clearwater Personal Injury Lawyer for Help
If you have suffered a personal injury, then make sure you contact an experienced personal injury attorney to discuss your legal questions. Your attorney can help you mitigate your damages and preserve your right to full compensation after your accident.
