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Mitigating Damages in California Personal Injury Cases

Hand InjuryWhen people are injured, they can sometimes make their injuries worse by their own actions or inaction. If the injury was caused by another’s negligence or wrongdoing, a personal injury suit may allow victims to recover compensation for their harm. But when victims makes their injuries worse, their compensation may be limited.

The Duty to Mitigate

In a personal injury case, the injured party has the duty to mitigate damages. This means that an injured party has the responsibility to act reasonably to minimize the harm resulting from the injury. If the court finds that the injured person has not mitigated his or her damages, it can reduce the amount that the victim will be able to recover from the wrongdoer.

It is important to remember that the failure to mitigate damages does not bar liability. The negligent person is still responsible for the harm. The only thing that is affected is the amount for which the negligent party may be liable. Even if the defendant is 100 percent at fault for the injury, that does not relieve the victim from the duty to mitigate damages.

Failure to Mitigate

The failure to mitigate damages is an affirmative defense. This means that in order to have the damage amount reduced, the defendant must show that it is more likely than not that the victim failed to mitigate.

The court will then consider the reasonableness of the injured party’s efforts to mitigate, in light of the circumstances of the case. For example, the court will consider the victim’s ability to make efforts or expenditures without undue hardship. If the injured party did make reasonable efforts to avoid further harm, he or she will be entitled to compensation for those expenditures.

Common Situations

One common scenario in which personal injury victims often fail to mitigate their damages is in seeking medical treatment. An injured person should seek reasonable medical treatment for any injuries that he or he has suffered. If a delay in seeking medical treatment exacerbates the injuries and causes further harm, or if delays in seeking treatment lead medical costs to increase, the victim may not be able to recover the additional damages for the added harm.

For example, a pedestrian may suffer a broken arm when she is hit by a car. If she delays getting the break set, and it then heals incorrectly, causing her extended pain and the eventual medical bills to increase, she cannot recover for the increase in damages.

Often, the failure to mitigate damages applies in the context of lost wages. Personal injury plaintiffs who are rendered unable to work can recover damages to compensate them for their lost wages. But they do have the responsibility to make reasonable efforts to get gainful employment.

As an example, a personal injury victim may lose his job because he was temporarily unable to work after being injured. But when he recovers, he must try to get a new job. If he does not, his compensation for lost wages will be reduced by the amount that he could reasonably be expected to earn in that time, if had made reasonable efforts to find employment.

If you have been injured by another’s wrongful acts or negligence, it is important to contact an attorney to help you with your case. Please call the dedicated San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. today for a free consultation.

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I absolutely cannot speak highly enough of CMA Law, particularly of Mr. McMahon, with whom I have had the most experience. My entire family and I trusted CMA with our case following a significant and life-altering vehicle accident, and to say they delivered is putting it lightly. They were reachable & personable at every stage of this arduous, complex, and scary process, made things easier at every stage, inspired us with confidence, and delivered results. If you're looking for a law firm to place the trust of you in your family in, look absolutely no further than CMA - this is your firm. Declan O.
I suffered a severe spinal injury while working as a farm mechanic in the Salinas Valley. The attorneys -Tim McMahon and Mark Sigala were fantastic from the beginning. They fought for me over 3 long years and in the end, we won a difficult liability case against the farm company who was using dangerous equipment. The defendants in the case tried everything to put the blame on me and even claimed I was their employee in order to avoid civil responsibility. Tim and Mark never gave up on me and my case. I cannot recommend them highly enough. They are fighters. Adrian A.
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