Mitigate Damages

The duty to mitigate damages requires an injured person to take reasonable steps to limit the harm caused by another party. Failing to mitigate damages means you cannot recover compensation for the injuries you would not have sustained had you taken reasonable mitigation efforts. 

This duty applies in all types of personal injury cases, including car accidentsproduct liability, and premises liability claims. Therefore, allegations of a failure to mitigate damages can significantly impact the outcome of your personal injury claim. 

Table of Contents

How Can a Failure to Mitigate Damages Impact My Personal Injury Case?


Failing to mitigate damages is an affirmative defense in a personal injury case. The defendant argues that they are not liable for any damages resulting from the plaintiff’s failure to take reasonable steps to mitigate damages. The defendant has the burden of proving that the plaintiff’s failure to mitigate directly led to an increase in damages.

For example, the defendant may argue that the plaintiff delayed seeking medical treatment after a truck accident. By failing to seek medical care, the plaintiff caused their injury to worsen. By the time the plaintiff finally sought treatment, they required surgery.

In other words, the defendant is arguing that the plaintiff’s failure to seek prompt medical care is the reason for the surgery, not the defendant’s actions. 

Suppose the defendant can prove that the surgery resulted from the plaintiff’s delay in seeking medical care. 

In that case, a jury may find that the defendant is not required to pay any damages associated with the surgery, including but not limited to:

  • Cost of the surgery, including fees for the surgeon, anesthesiologist, hospital, medications, etc.
  • Post-operative care, including in-home nursing care and personal care
  • Loss of income and benefits from being out of work for the surgery and recovery
  • Any out-of-pocket expenses related to the surgery
  • Pain and suffering or other non-economic damages related to the surgery

Because the plaintiff failed to mitigate their damages, they could be responsible for the entire cost of the surgery. However, the jury could find that the defendant is liable for the other damages sustained by the plaintiff.

How Can I Avoid Allegations of Failing to Mitigate Damages?

After a personal injury or accident, injured parties need to take steps to mitigate their damages. 

Examples of ways you can mitigate damages include:

  • Seeing a medical professional as soon as possible after an accident or injury
  • Keeping your doctor’s appointments and following your doctor’s treatment plan
  • Taking medications prescribed by your physician
  • Attending and participating in therapy
  • Staying home and resting as instructed by your doctor
  • Following your doctor’s instructions for light-duty and returning to work
  • Promptly reporting new symptoms or signs of an injury or condition
  • Seeing another doctor for a timely second opinion if you disagree with your primary doctor’s assessment and treatment plan

The steps need to be reasonable. Injured parties are not expected to do extraordinary things to mitigate damages. The jury decides what is reasonable based on how a “reasonable person” would have mitigated damages in a similar situation. 

How Does a Jury Decide What is “Reasonable” When Considering Allegations of Failure to Mitigate Damages?

Each personal injury case is unique. The steps that you might take to mitigate damages must be based on the facts and circumstances of your situation. Therefore, a jury views your actions according to the “reasonable person” standard.

The jurors decide what a person with ordinary prudence would have done in the same situation. Then, they compare your conduct to the “reasonable person.” If your conduct falls short of the “reasonable person” standard, the jury might find that you failed to mitigate damages.

Jurors may consider various factors when determining whether you took sufficient steps to mitigate damages after an accident or injury. 

Factors the jurors might consider include:

  • The type and severity of your injuries
  • When you first became aware that you needed to mitigate damages
  • The amount of time between your injury and your efforts to mitigate damages
  • Whether you sought medical treatment within a reasonable time after discovering the injuries
  • The effectiveness of the steps you took to mitigate damages
  • The opportunities you had to avoid losses and damages 
  • Any expenses that you would have incurred to mitigate damages and your ability to pay those expenses

An insurance company will almost always use delays in medical care to allege failure to mitigate damages. Even if you do not believe you were seriously injured in an accident, it is best to see a doctor for an examination. You could have sustained injuries that you might not know about until a doctor completes an evaluation. 

Schedule a Free Consultation With a Los Angeles Personal Injury Lawyer

An experienced legal team can help you with your personal injury claim. Contact a Los Angeles personal injury attorney for a free consultation if you’ve been injured in an accident. They’ll help you fight allegations of failing to mitigate damages and recover the maximum compensation for your case.



6300 Wilshire Blvd. Suite 807
Los Angeles, CA 90048
Los Angeles Law Office Map

350 S Figueroa St. Suite 276
Los Angeles, CA 90071
Downtown Los Angeles Law Office Map

Call: (877) 751-8953

402 W. Broadway #400
San Diego, CA 92101

Call: (619) 404-2797

2400 E Katella #800
Anaheim, CA 92806

Call: (714) 386-7623

8050 N. Palm Ave. #300
Fresno, CA 93711

Call: (559) 853-4863

6360 Van Nuys Blvd. #219
Van Nuys, CA 91401

Call: (213) 296-1243

11801 Pierce Street #200
Riverside, CA 92505

Call: (951) 234-5468

99 S Almaden Blvd #600
San Jose, CA 95113

Call: (408) 617-8928

111 West Ocean Blvd. #400
Long Beach, CA 90802

Call: (562) 354-8219

473 E. Carnegie Drive #200
San Bernardino, CA 92408

Call: (818) 650-3861