Mitigating Damages in California Personal Injury Cases

When 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.

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.

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.

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.

• RICHARD GREEN, Plaintiff and Appellant, v. RICHARD B. SMITH et al., Defendants and Respondents.
• VALLE DE ORO BANK, N.A., Plaintiff and Appellant, v. HENRY GAMBOA, Defendant and Respondent.
• CITY OF OAKLAND, Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY (a Corporation), Appellant.