The Duty to Mitigate: What Injured Individuals Need to Know

In Arizona, and throughout the country, injured plaintiffs are entitled to recover damages for damages they incur due to the negligent, reckless, or intentional acts of others — whether they are injured in a car accident or a slip-and-fall accident, or some other accident scenario.  This right to recovery is not absolute, however.  Injured plaintiffs must act in accordance with their various duties and responsibilities under the law, which includes the duty to mitigate their losses.

What is the Duty to Mitigate?

Defendants cannot be held liable for losses that they do not actually cause.  This “causation” requirement is fundamentally linked to the duty to mitigate.

How so?

The duty to mitigate requires that the injured plaintiff exert “reasonable efforts” to reduce their total losses — failure to do so will result in a proportional decrease in one’s recoverable damages.  Losses can be quite varied, and as such, mitigation must cover all the losses that the plaintiff intends to claim.  This can all be somewhat confusing to understand, so let’s use a quick example to clarify.

Suppose that you are injured in a motor vehicle accident by the defendant, who was excessively speeding at the time, thus causing the accident.  You sustained significant neck and back injuries during the accident, and as a result, you can no longer work.  Now, suppose that you seek adequate medical diagnostics and treatment as soon as possible.  Your doctor asks that you sign up for long-term physical therapy sessions in order to regain some of your pre-accident function.

If you fail to attend the physical therapy sessions, then the defendant may have an excellent argument for your “failure to mitigate.”  After all, they could argue that your injuries were worsened by your refusal to attend the physical therapy sessions, that the injuries would have mostly resolved had you attended the sessions, and that you could have returned to your job soon thereafter (or found alternative employment).  The defendant could thereby convince the court to reduce your damages, as they did not actually “contribute” to a significant portion of the damages sustained over time.

Importantly, the duty to mitigate is not exclusively linked to medical expenses and pain and suffering damages.  If you are injured in an accident, and afterwards, you don’t seek employment, then you cannot claim the same amount of “lost wages” (as you did not seek to mitigate those damages).

Reasonable Efforts are Required

The duty to mitigate is premised on “reasonable effort.”  As the plaintiff, you are not expected to make perfect decisions — just reasonable ones, given the circumstances.  What constitutes reasonable effort depends largely on the circumstances.

For example, if you fail to seek out basic medical services after an accident, then that will almost certainly constitute a failure to exert reasonable effort towards mitigating your damages.  On the other hand, the defendant cannot hold you to ridiculous standards.  If you do not seek out a niche medical expert located in a foreign country, that would likely not be considered a violation of your duty to mitigate (as it would demand more than “reasonable effort”)

Make an Appointment With an Experienced Phoenix Accident Lawyer Today

If you have been injured in an accident due to the negligence or wrongful conduct of another individual (or entity), then you may have the right to sue and recover damages for your various losses.  Still, despite the fact that you may be entitled to damages under Arizona law, it’s important to note that you have responsibilities as the injured plaintiff that — if you fail to uphold them — could undermine your claim.  Among these responsibilities is the duty to mitigate your damages.

Here at Hirsch & Lyon, our attorneys have more than 65 years of combined experience representing injured plaintiffs throughout the state of Arizona.  We specialize in motor vehicle accident litigation (car, truck, and motorcycle cases), and due to our commitment to these specialized practice areas, we are uniquely well-positioned to successfully litigate such claims on behalf of our clients.

We do not get paid until you obtain a settlement or verdict in your favor.  Our contingency fees are discounted, however, ensuring that even when you win your case, you get to keep more of what you’ve fought so hard to obtain.

Call (602) 737-0532 or submit an online claim form to schedule a free consultation with an experienced Phoenix accident attorney here at Hirsch & Lyon.