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FAILURE TO MITIGATE: HOW IT AFFECTS YOUR PERSONAL INJURY CASE

INTRODUCTION

If you are injured in a slip and fall, motor vehicle collision, medical malpractice, or other negligence type injury, you may hear the adjuster or opposing counsel state that you failed to mitigate your damages, so they are only responsible for a portion of your injuries. That raises several questions: What is failure to mitigate? Am I being punished for someone else’s negligence that caused injuries to my body? How does it come into play? What affect does it have on my injury case?

DEFINITION AND EXPLANATION

Failure to mitigate is used by the defense to reduce an injured party’s recovery. Failure to mitigate is an affirmative defense similar to comparative fault and works to reduce your recovery based on your percentage of fault in minimizing your injuries and damages. Instead of reducing the defendant’s liability for the incident, though, as comparative fault would, it goes directly to reducing the portion of damages that are perceived as reasonably avoidable even if defendant is 100% at fault for causing the incident that resulted in injuries. Insurance companies and defense attorneys will often assert a failure to mitigate defense alleging that you are partially responsible for the extent of your injuries and damages because you could have taken reasonable steps to minimize your injuries and damages, you had an obligation to do so when possible, but you failed to do so.

If a jury could find that you caused or contributed to your injuries, the jury would be instructed to reduce your recovery for the portion of your injuries they deem resulted by your failure to take reasonable steps to avoid or to minimize those injuries. If the damages could have been avoided by you but weren’t, the defendant will not be responsible for that portion that could have been avoided.

EXAMPLES

Surgery. If you sustain a broken leg, and your doctor recommends surgery to fuse the bones together, but you opt not to undergo surgery and the bones fail to fuse together causing a more permanent issue, your recovery will likely be reduced if the permanency and resulting symptoms could have been prevented with surgery.

Ignoring recommended treatment. If a physical therapist recommends treatment twice a week for 4 weeks, and you only present for 2 sessions and then assert that you continue to have severe pain, the defense will argue that your pain could have reasonably been minimized with additional physical therapy as recommended; therefore, your pain and suffering damages should be reduced for failure to mitigate. If a doctor recommends light duty and instructs you not to lift more than 5 pounds, but you refuse to take time off of work and continue to perform work duties that require you to lift 25 pounds at work, which causes your injury to take longer to heal, the defense will argue that you could have recovered in 4 weeks instead of 10. They will argue that they should not be responsible for the additional 6 weeks of pain and suffering because you caused that additional suffering by failing to follow doctor’s orders resulting in failure to mitigate your damages.

Wage Loss. If your injuries prevent you from returning to your line of work because of the physical demands of the job, but you are fully capable of obtaining more sedentary employment, then you may be expected to find employment that is less physically demanding. You cannot just sit around at home and blame the other side for your lack of income if you chose not to seek any type of employment. That doesn’t mean the defense won’t be responsible for any wage loss but it will likely reduce the amount of wage loss they have to pay. If you were making $15 per hour as a roofer, but your injuries prevent you from continuing in the roofing industry, but you could obtain employment as a store greeter for $10 per hour, the defense will argue that you failed to mitigate your damages by sitting at home without making any attempt to find employment, and they should only be responsible for lost wages at $5 per hour instead of $15.

RULES

Missouri Approved Instructions 4.01 and 32.29 would apply when failure to mitigate is successfully argued by the defense. Together, they read:

“If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff sustained as a direct result of the occurrence mentioned in the evidence. If you find that plaintiff failed to mitigate damages as submitted in Instruction Number ____, in determining plaintiff's total damages you must not include those damages that would not have occurred without such failure.”

Although failure to mitigate is an affirmative defense available in personal injury claims involving negligence, when products liability claim is involved, failure to mitigate is addressed by statute, specifically R.S.Mo. § 537.765.2 and § 537.765.3(6), which identifies failure to mitigate as plaintiff’s fault. It reads:

“2.       Defendant may plead and prove the fault of the plaintiff as an affirmative defense. Any fault chargeable to the plaintiff shall diminish proportionately the amount awarded as compensatory damages but shall not bar recovery.

3.         For purposes of this section, "fault" is limited to:

(6) The failure to mitigate damages.”

CONCLUSION

Failure to mitigate is an affirmative defense that can reduce a plaintiff’s recovery for damages based on that portion that could have been prevented by the plaintiff. To protect your injury claim, we always advise that you follow all doctor recommended treatment. 


Jason C. Amerine
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President and Owner, Castle Law Office of Kansas City
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