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What Does it Mean to Mitigate Damages?

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What Does it Mean to Mitigate Damages?

When a person suffers injury or damages due to another’s negligence, the law entitles them to pursue compensation. However, the injured person has a duty to minimize, or mitigate, the damages they suffered due to an accident. An injured person can’t incur unnecessary costs and expect to recoup those expenditures. Indeed, an accident victim has to take steps to limit their financial losses after an injury.

How Does the Duty to Mitigate Damages Work in Personal Injury Case?

New York law requires injured persons to mitigate damages their damages after an accident:

A “party who claims to have suffered damage by the tort of another is bound ‘to use reasonable and proper efforts to make the damage as small as practicable’ . . . and if an injured party allows the damages to be unnecessarily enhanced, the incurred loss justly falls upon [them].”

What Does Mitigate Damages Mean? Mitigation means that a victim must take reasonable steps to minimize their losses related to an injury accident. An injured person does not have to take every step to mitigate their damages, especially if such steps are inconvenient or costly. They merely have to do what’s reasonable under the circumstances.

Importantly, a judge or jury determines whether your attempts at mitigation were reasonable.

How Does a Failure to Mitigate Damages Affect My Recovery of Compensation?

An at-fault party or their insurance company may claim you failed to mitigate damages to reduce their liability for your losses.

New York uses pure comparative fault rules to divide fault when multiple parties share the blame for an accident. If a plaintiff shares responsibility for their injuries, this rule reduces their compensation to account for their percentage of fault. For example, say you have $100,000 in damages after a car accident, but the jury finds you 40% at fault for the accident. You will only be able to recover $60,000 of your damages (60%).

Insurance companies use this rule to limit their payout after an accident. By claiming you failed to mitigate your losses, they may be able to shift some percentage of fault to you. This, in turn, will reduce the amount of compensation you can recover.

The most common example of a failure to mitigate damages is a person’s decision to forego medical care after an accident. In such cases, the defendant will claim that the plaintiff accrued unreasonable damages due to their failure to seek prompt medical care. They will argue that the plaintiff’s injuries and damages would have been less severe if they had received medical treatment.

How Does a Defendant Raise Mitigation as a Defense?

The defendant must allege your failure to mitigate damages in their reply to your personal injury complaint or later court proceedings. In other words, it is an affirmative defense. They have to raise it before a judge, or they can’t use it.

The defendant will have the burden of proving you neglected to reasonably limit your damages after the accident. They will succeed on this defense if they can show it is more likely than not that you failed to reduce your losses.

Do I Have to Buy Medical Supplies and Other Items to Mitigate My Damages?

Possibly. Remember, you have to take reasonable measures to decrease your financial losses after an accident. Buying medical supplies might be reasonable, depending on your injury.

Mitigation of damages example is, say you hurt your knee after a slip and fall at a restaurant. You might recover faster if you wear a knee brace. Wearing a knee brace is not especially costly or inconvenient—it’s reasonable. So, you might have to mitigate your damages by buying and wearing a knee brace.

A Real-Life Example of Failure to Mitigate Damages in New York

In Cody v. State of New York, the plaintiff injured himself at work when a piece of metal entered his right eye. He suffered from pain and swelling, and his vision became blurry. The plaintiff’s eyesight remained impaired even after his first surgery. A second surgery helped restore his distance vision, but he still had trouble seeing things up close.

The plaintiff failed to get glasses despite the recommendation of three doctors. Moreover, he never consulted any vision professional to seek other remedies to improve his vision. As a result, he endured extra pain and suffering and couldn’t find steady employment. The court found that this lack of effort to improve vision constituted a failure to mitigate damages, stating that the plaintiff “could have mitigated some portion of the ill effects” of his poor eyesight by wearing glasses.

Contact a New York City Personal Injury Lawyer for Help

If you’ve been injured or suffered other damages, our experienced personal injury lawyers in New York City can help you with any possible legal remedies. We’ll provide guidance on how you can minimize your damages to avoid any allegations that you failed to mitigate.


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