The Plaintiff’s Duty to Mitigate Damages

September 29, 2023 | - News & Insights

The general rule of personal injury law is that the defendant is liable to a successful plaintiff for the full measure of their damages — that is, whatever amount it takes to put the plaintiff in the same position he or she would have been in had the accident not occurred. However, that rule is dependent upon the plaintiff acting reasonably and prudently. If the plaintiff contributes to his or her injuries or otherwise increases the severity of his or her damages, some would argue that it would be unjust for the defendant to be liable for that increase. This principle is known as a plaintiff’s duty to mitigate damages and is a bedrock concept in personal injury law. If you are a defendant in a personal injury action, a North Carolina personal injury defense attorney may be able to help you reduce your liability by showing that the plaintiff failed to mitigate his or her damages.   

What Is the Plaintiff’s Duty to Mitigate Damages? 

Plaintiffs in personal injury actions and other torts have a duty to minimize their damages. In North Carolina, this principle is also referred to as the “doctrine of avoidable consequences.” The 1968 case of Miller v. Miller sums up the duty succinctly: “The rule in North Carolina is that an injured plaintiff, whether his case be tort or contract, must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant's wrong. If he fails to do so, for any part of the loss incident to such failure, no recovery can be had.” It is important to note that failure to mitigate damages does not bar a plaintiff from recovery; rather, it merely reduces the amount of damages he or she may recover from the defendant. 

How the Duty to Mitigate Damages Differs From Contributory Negligence

The plaintiff’s duty to mitigate damages and the resulting reduction in damages for failure to do so is similar to the doctrine of contributory negligence. Under that doctrine, a plaintiff who is partially at fault for his or her injuries is barred from recovery. While both doctrines limit (or prohibit) a plaintiff’s recovery, the behavior in question occurs at different times. With contributory negligence, the negligence occurs either before or at the same time as the defendant’s negligence. With failure to mitigate damages, the plaintiff’s act or omission occurs after the defendant’s negligence that caused the injury. Furthermore, contributory negligence is a bar to recovery, while failure to mitigate damages only reduces the amount of damages a successful plaintiff is entitled to receive. Contact a North Carolina personal injury defense attorney for more information about the important distinctions between these two doctrines. 

Examples of Failure to Mitigate Damages

A plaintiff can fail to mitigate damages either through an act or an omission — i.e., by doing something the plaintiff reasonably should not have done or by failing to do something the plaintiff reasonably should have done. The following are common examples of such actions in personal injury cases. Note that the following behaviors by plaintiffs do not automatically mean that the plaintiff has failed to mitigate damages - they only constitute a failure to mitigate damages if such actions constitute an unreasonable failure to avoid or minimize injuries. 

Failing or Delaying to Seek Medical Care 

Failing to seek medical care or unreasonably delaying seeking such care is one of the most common bases for arguments that a plaintiff failed to mitigate damages. This is because failing to seek medical care can significantly exacerbate the extent of the plaintiff’s injuries and, by extension, the defendant’s liability for them. 

Refusing Medical Procedures 

Another common scenario arises where an injured plaintiff is told by a doctor that he or she needs to undergo a certain medical procedure, but the plaintiff refuses the procedure. In some cases, refusal of a medical procedure can turn what should have been a temporary injury into a permanent one. If the plaintiff’s refusal of the medical treatment is found to be unreasonable, the plaintiff may be barred from obtaining damages for the permanent injury from the defendant. 

Ignoring Medical Advice 

It is critical for injured patients to cooperate with their medical team’s treatment plans if they are to recover. Unreasonably failing to cooperate can, in some cases, indicate a failure to mitigate damages. For example, assume that an injured plaintiff’s doctor tells him to refrain from lifting heavy objects for six months, but the plaintiff ignores that advice and exacerbates his injury. The defendant could then argue that the portion of the injury attributable to lifting the heavy object was the result of the plaintiff’s failure to mitigate damages. 

Use of Alternative Treatments

Alternative treatments, including acupuncture, chiropractic, and homeopathic remedies, have increased in popularity over the years. While the use of such procedures is not necessarily unreasonable, a plaintiff who uses them in lieu of traditional treatments may open themselves up to an allegation of failure to mitigate damages. 

Failure to Seek Alternative Employment 

Many injured plaintiffs claim loss of income and lost earning capacity as damages in personal injury suits. But the duty to mitigate damages encompasses the duty to seek alternative employment while the plaintiff recovers, if possible. If a defendant can show that the plaintiff had opportunities to work and unreasonably refused them, such evidence may be used to reduce the plaintiff’s award. 

Plead Failure to Mitigate Damages With Help From a North Carolina Personal Injury Defense Attorney 

Failure to mitigate damages is an affirmative defense, which means that the defendant must demonstrate it by a preponderance of the evidence in litigation. This can be more difficult than it sounds, however, as proving failure to mitigate damages often involves the use of expert medical and occupational witnesses, as well as complex calculations of the damages attributable to the plaintiff’s failure to mitigate. As such, these cases call for the assistance of an experienced personal injury attorney. For more information about pleading failure to mitigate damages as an affirmative defense, please contact a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.

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Harris, Creech, Ward & Blackerby, P.A.

325 Pollock Street, PO Drawer 1168,
New Bern, NC 28563

Tel: 252-638-6666
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