• Gregory Sandler

MITIGATION OF DAMAGES: REDUCING THE FINANCIAL IMPACT OF YOUR ACCIDENT


“Mitigation” is just a fancy word that means to lessen something. In a lawsuit, “mitigation of damages” means that someone who has been injured must take reasonable steps to keep his damages to a minimum.

For example, if an employee is improperly fired and brings a lawsuit against his former employer, he cannot just sit home and avoid working until the lawsuit is over. If the law permitted that, people could just sit on their duffs and wait, hoping for a big payday. There would be no incentive for injured parties to take care of themselves or to earn money to offset their losses.

Virginia’s courts have long recognized that an injured plaintiff must try to keep his damages at bay. In the 1940s, a landowner named Haywood sued her neighbor for illegally blocking her access to a road. She argued that it was inconvenient for her to access the property for farming purposes because she had to take a different road to get there.

Although the court agreed with her that her neighbor had improperly blocked the road, it did not allow her to recover any money from her neighbor. The reason she could not recover money damages was the cause she had failed to mitigate her damages. The court explained that she,” with trifling inconvenience, could have used [a different] roadway.” Haywood v. Massie, 188 Va. 176 (1948).

If you’ve been hurt due to the negligence of someone else, you have a duty to take reasonable actions to mitigate, or lessen, your losses. This means getting appropriate medical attention, following the instructions of the physician or therapist, refraining from activity that will prolong your treatment or prevent your healing, and returning to work if it can be done safely.

Failure to mitigate damages is an affirmative defense that the insurance company or defense attorney will use to convince a judge or jury that you should not receive the amount of compensation for your injury that you claim is due. The argument is simply “This plaintiff should not collect from the wrongdoer for harm that he caused himself.” Most of us would agree, so if you have been injured or have suffered some other economic or personal loss, you must take reasonable steps to limit your harm.

This rule applies in all kinds of cases, from landlord and tenant to premises liability cases to motor vehicle accidents:

  • If you are a landlord and your tenant moves out, you need to take reasonable steps to rent their unit;

  • If you are a patient and your doctor provides you with a plan of treatment or a regimen of medication, you need to make reasonable efforts to comply;

  • If you are injured in a car crash, you need to go back to work when you are medically able.

The Sandler Law Group handles personal injury lawsuits every day. We know how to navigate all the nuances of litigation, including the presentation of your damages to a judge or jury. Have a question? Call us toll free at 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at www.SandlerLaw.net or email us at GSandler@Sandlerlaw.net.

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