The Plaintiff's Duty to Mitigate Damages

In California, defendants can assert a partial defense – that, if successful, will reduce their damages liability but not necessarily absolve them of it in its entirety – known as the failure to mitigate damages.

So, what is a failure to mitigate damages in the personal injury context?

Personal injury plaintiffs in the state of California have a duty to mitigate the damages they suffered from their injuries. This duty to mitigate requires only that the plaintiff made reasonable efforts and expenditures to resolve, lessen, and otherwise minimize their injuries and the suffering caused by such injuries.

The defendant will most likely not be able to successfully assert a failure to mitigate, for example, by claiming that plaintiff went to a skilled and highly-rated orthopedic surgeon, as opposed to the top-rated orthopedic surgeon in the state – the plaintiff need only meet a sufficient reasonableness standard for his or her conduct following the injury.

The plaintiff’s duty to mitigate changes significantly based on the circumstances of the case. A plaintiff who has been injured in a non-obvious way, for example, may not be found to have failed their duty to mitigate if they do not seek medical care. A plaintiff who has been injured in an obvious way, on the other hand, must seek medical care in order to satisfy their duty to mitigate.

Ultimately, the duty to mitigate reduces the defendant’s liability because a defendant cannot be held responsible for unreasonable, unexpected, and negligent actions taken solely by the plaintiff to worsen their condition (or otherwise fail to resolve said condition).

The Basics

Before we move forward in unpacking the duty to mitigate, it is worthwhile to reiterate the basics. California Civil Jury Instruction (CACI) 3930 succinctly describes the plaintiff’s duty to mitigate:

The plaintiff is not entitled to recover damages for harm that the defendant proves could have been avoided with reasonable efforts or expenditures by plaintiff. The reasonableness of the plaintiff’s efforts must be considered in light of the circumstances, which includes the plaintiff’s ability to make such efforts without undue risk or hardship.

You should always take reasonable steps towards resolving your injuries and the suffering caused by your injuries, for three reasons: 1) for your own well-being, you should pursue proper medical care and therapy as soon as possible; 2) you are entitled to damages for any expenditures put towards reasonable mitigation efforts; and 3) if you do take reasonable steps to mitigate, then the defendant will have an excellent defense argument that may ultimately reduce their damages liability and leave you with a much smaller damages award.

Unpacking Reasonableness

Whether the actions you took after your injury will be considered reasonable in a court of law is a somewhat subjective assessment. As such, you would do well to consult with a skilled, experienced personal injury attorney who is capable of arguing the facts in your favor.

Though reasonableness requires a somewhat subjective assessment of the facts, the California courts have, over time, helped to clarify what constitutes reasonable measures.

In Green v. Smith (1968), the court wrote, “The reasonableness of the efforts of the injured party must be judged in the light of the situation confronting him at the time the loss was threatened and not by the judgment of hindsight.” In other words, when determining whether the plaintiff’s actions were reasonable, one must view the issue as though they were the plaintiff at the time. One must not view the issue from a later perspective. The court further wrote, “The fact that reasonable measures other than the one taken would have avoided damage is not, in and of itself, proof of the fact that the one taken, though unsuccessful, was unreasonable. […] It is sufficient if the he [the plaintiff] acts reasonably and with due diligence, in good faith.”

For example, suppose that you are injured in a car accident. You elect to have surgery on your leg so that you can walk normally again. This surgery is somewhat riskier than the alternative, however, but it will restore a greater degree of leg function if it is successful. The surgery ultimately is not successful. Though the defendant will most likely assert the failure to mitigate defense, the case law indicates that if your decision was made reasonably, with due diligence, and in good faith, then the defendant would face a difficult road in winning.

In Christiansen v. Hollings (1941), the court wrote, “What is reasonable diligence depends upon all the facts and circumstances of each case. There is no hard and fast rule that the injured person must seek medical care of a particular type. Self-care may be reasonable under the circumstances.”

The court in Christiansen argued that in some circumstances, even self-care may be found to be reasonable. As a general rule, however, you should always seek out the care of a trained medical professional. Do not attempt self-care in lieu of professional care. Though in some limited or rare circumstances, the court might be able to find that self-care was reasonable, it is not worth taking a chance that the court will find that your self-care was reasonable under the circumstances of your case.

How much must you mitigate?

It may be difficult to understand the balance inherent in the duty to mitigate – at what point are your efforts “good enough” to satisfy your duty to mitigate. You may not have the finances necessary to seek out the best, most cutting-edge medical care for your injury. At what point have you done enough?

The court in Valencia v. Shell Oil Co. (1944) wrote, “The duty to minimize the damages does not require an injured person to do what is unreasonable or impracticable, and, consequently, when expenditures are necessary…the duty does not run to a person who is financially unable to make such expenditures.” Essentially, if you cannot afford certain expenditures in order to mitigate your damages, then your failure to do so cannot be held against you.

This is not absolute. In most cases, you will still be expected to make certain expenditures to reasonably mitigate your damages. You will not be expected to spend a fortune on expensive alternative treatments, and other such expenditures, however.