Mitigate Damages

Mitigation of damages” is an often-asserted affirmative defense against a personal injury claim. It is a partial defense rather than a complete defense against liability. 

When a defendant accuses you of failing to mitigate your damages, they are saying that part of your losses is your own fault. The idea is that a defendant should not have to pay for losses that they could have easily avoided. Insurance companies frequently raise this defense.

Examples of Failure To Mitigate Damages in Personal Injury Claims

Examples of Failure To Mitigate Damages in Personal Injury Claims

Following are some common examples of failure to mitigate damages:

  • Failure to seek medical care after an accident.
  • Not following your doctor’s instructions.
  • Failure to wear a helmet prior to a motorcycle accident. Even though Illinois has no motorcycle helmet law, you could characterize riding helmetless as either comparative negligence or failure to mitigate damages.
  • Missing work when you didn’t really need to, using your injuries as an excuse.

The foregoing examples cover most of the reasons why a defendant or an insurance company might accuse you of failing to mitigate your damages.

The Rule of Reason

You must take reasonable steps to mitigate your damages – and nothing more. But precisely what constitutes a “reasonable” response to an injury? This is where opposing parties will argue—and where a lawyer can really come in handy. 

If you suffer a car accident injury, for example, the rule of reason might require you to seek prompt medical treatment. The rule of reason, however, will probably not require you to fly across the country to seek the best hospital in the United States. 

There are gray areas, of course. What if you felt no pain until the day after the accident, but you sought medical treatment as soon as the pain began? It depends. The fate of a “mitigation of damages” defense is highly fact-dependent.

How Much Is a Mitigation of Damages Claim Worth?

As an injury victim, you deserve precisely the amount of compensation you would need if you had exercised reasonable efforts to mitigate your damages. Suppose, for example, that your medical expenses are $10,000. Suppose further that if you had properly mitigated your damages, your medical expenses would have amounted to only $6,500. In that case, the defendant will not bear liability for the extra $3,500.

Mitigation of Damages vs. Comparative Negligence

The Illinois doctrine of comparative negligence apportions liability between parties based on their respective percentages of fault. If you were partially at fault for the accident that injured you, you will lose compensation based on your percentage of fault, up to 50%. As soon as your percentage of fault reaches 51% or more, you would be barred from recovering damages under state law. 

The difference between comparative negligence and mitigation of damages is that comparative negligence is based on what you did (or didn’t do) to contribute to the cause of the accident

By contrast, mitigation of damages is based on how you respond to the accident after it occurs. This is a necessarily oversimplified explanation of the difference between these two legal doctrines. Talk to your lawyer for a more nuanced explanation of the differences.

How Affirmative Defenses Work in Personal Injury Lawsuits

When you file a personal injury lawsuit, the burden of proving your claim falls on you. If you claim, for example, that a department store escalator malfunctioned and caused you to fall and break your hip, it is you who must prove the department store caused your injury by a “preponderance of the evidence”. Put simply, you must convince the court that there is at least a 51% chance that your version of events is true.

Affirmative defenses are different. In an affirmative defense, it is the defendant who must assert the defense, and it is the defendant who bears the burden of proving the defense. The operative standard is still a “preponderance of the evidence” in most cases. Common affirmative defenses include:

  • Expiration of the statute of limitations deadline for filing a lawsuit;
  • Assumption of risk (if you signed a waiver of liability, for example);
  • Comparative negligence (discussed above); and
  • Failure to mitigate damages.

This is only a partial list of possible affirmative defenses. Some offer the defendant complete relief from liability, while others offer partial relief. Even if you have not yet filed a lawsuit, the existence of a strong affirmative defense might tempt you to accept a lower negotiated settlement just to avoid losing in court.

Do You Need a Naperville Personal Injury Lawyer?

Most personal injury victims would benefit from the assistance of a lawyer. This is not always the case, however. So much depends on the specific circumstances surrounding your claim, especially its ultimate value. You might need a Naperville personal injury lawyer, however, to help you calculate your claim’s value.