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What is the duty to mitigate?

August 31, 2009

A person who has been injured in some way by another person has a duty to minimize the amount of damages incurred. The injured party must take reasonable steps to limit any additional losses and/or the aggravation of the injury. This is known as the duty to mitigate.

As a person injured due to someone else’s negligence, you are legally entitled to financial compensation for your injuries and losses. However, you also have a legal responsibility to ensure that your injuries do not worsen if you have the ability to exercise reasonable care and diligence to prevent your damages from increasing.

For example, let’s say that Jane Smith was involved in a car accident caused by the other driver’s negligent behavior. Jane’s leg is broken in the accident. Her duty to mitigate would require that she take reasonable steps to prevent the injury to her leg from worsening. For example, she would be required to seek medical attention to have the broken leg treated. If left untreated, a broken leg could worsen to the point that surgery may be required, which is something that could have been avoided.

If you fail to mitigate your losses, the court can reduce the amount of damages you are awarded by a percentage that represents the extent of the injury that could have been avoided through reasonable care.

For instance, suppose that Jane’s doctor prescribed a rehabilitation program that would ensure that she was able to resume normal activities once her leg was fully healed. If Jane failed to undergo the rehabilitation, and she will walk with a limp as a result, the amount of damages she would have been awarded will be reduced by the percentage of harm that the rehabilitation could have prevented.

For example, if the rehabilitation would have prevented 25% of the effects of her broken leg, her award will be reduced by 25% –her award of $10,000, for instance, will be reduced by $2500.

You do not have to take every available step to mitigate your damages, however. The law only requires that you prevent further damages that could have been “reasonably avoided.” This is generally defined as the steps a reasonable person would take under the same circumstances. In other words, you must exercise “ordinary care” in attending to your injuries.

For example, in Jane’s case, her duty to mitigate would not require that she fly to Switzerland to be treated by the world’s top broken leg expert.

Also note that it is the defendant’s responsibility to prove that the plaintiff failed to mitigate their damages. In Jane’s case, for example, the defendant would have to prove that seeking immediate medical attention for her broken leg would have prevented the need for surgery, and therefore, the defendant should not have to be responsible for the costs of the surgery.

If you believe you may have a Texas personal injury lawsuit, contact >Fears Nachawati today. We will provide you with free legal advice about your potential case, including the steps you should take to preserve your claim. Simply email us at or call us on our toll-free hotline at 1.866.705.7584.


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