When a person suffers an injury due to another person’s negligence or wrongdoing, they may be able to seek compensation. However, the law requires that the injured person mitigate–or minimize–the damages they suffered as a result of the other person’s actions. If the injured person fails to properly mitigate their damages, they may not be able to recover all of their losses.
It is important to understand what mitigation is and how to do it.
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How Does The Duty To Mitigate Damages Work In A Personal Injury Case?
Mitigation prevents an injured person from “recovering damages that could have been avoided through reasonable efforts.” In Maryland, a victim of a car accident or other incident has a duty to mitigate their damages after the event.
An injured person typically mitigates their damages by seeking medical treatment, following doctor’s instructions, purchasing necessary medical devices, and avoiding unnecessary fees for medical expenses or property repairs.
However, the injured person does not have to take drastic measures to mitigate their damages. They merely must do what is reasonable.
For example, suppose Aubrey is driving her car when she gets distracted by a text message from a friend.
While she is distracted, she rear-ends Barry’s car while he is stopped at a red light. The damage to Barry’s is unable to drive his car away from the accident and must have his car towed away from the scene of the accident.
Barry also suffered some minor injuries and was taken to the hospital. Barry failed to retrieve his car promptly after leaving the hospital, resulting in high storage fees. Also, Barry did not follow the hospital’s discharge instructions, and his injuries worsened.
In the example above, Barry may have failed to mitigate his damages.
First, if Barry was able to get his car out of the storage lot, he should have done so in order to avoid additional storage fees and costs. Second, Barry’s failure to follow the hospital’s discharge instructions was unreasonable because it likely made his injuries worse.
What Happens If I Fail To Mitigate My Damages?
The insurance company may try to reduce their liability for your damages if you failed to mitigate your losses. If the insurance company is able to show a failure to mitigate damages, the court may reduce or reject your request for reimbursement.
Maryland is one of only four states that uses a “pure contributory negligence” system. Under contributory negligence, an injured person cannot collect any compensation for an accident if they share any responsibility for their injuries. Therefore, the at-fault person’s insurance company will likely use the contributory negligence system to limit their payout to a victim who fails to mitigate damages.
Using our previous example, suppose Barry submits an injury claim with Aubrey’s insurance company and requests $5,000 for storage lot fees because his car had to be towed and stored after the accident. He requests another $10,000 for the injuries he sustained from the accident.
Aubrey’s insurance company could argue that Barry should not receive $5,000 for storage lot fees because he did not move his car from the storage lot upon leaving the hospital. It could also argue that Barry should not receive $10,000 for his injuries because he ignored the hospital’s discharge instructions causing his injuries to become worse.
How Does The At-Fault Person Raise The Defense Of Mitigation?
Failure to mitigate damages is an affirmative defense. Typically, an affirmative defense is alleged early in the court proceedings, such as in a response or answer to the personal injury complaint. The at-fault person will be expected to prove that the injured person failed to properly mitigate their damages at trial.
The at-fault person will succeed in the mitigation defense if they show that it is more likely than not that the injured person failed to reduce their losses.
Contact a Baltimore Personal Injury Lawyer for Help
Insurance companies often claim a victim failed to mitigate damages even when it’s not true. In Maryland, it may allow them to escape liability completely. A Baltimore personal injury attorney can protect you from unfair allegations that you failed to mitigate damages. Contact us today for a free consultation to discuss your case.
