What is mitigation of damages?

How does mitigation of damages work? An example

Example: after a forklift accident at a warehouse, a worker's doctor prescribes eight weeks of physical therapy. He goes twice, stops, and a year later still cannot lift his arm overhead. The company's insurer argues that if he had finished therapy, he would have been back to full duty in three months. If a jury agrees, it might pay the first three months of lost wages and pain, but not the nine months it decides he could have avoided.

Reasonable does not mean perfect. Missing therapy because you could not get a ride or the clinic would not take your insurance is different from simply not going.

Why does mitigation matter to someone who was hurt?

It is one of the most common ways insurers lower offers. Gaps in treatment, skipped appointments and turning down light-duty work all get used. Keeping your appointments, writing down why you missed any, and following your doctor's work restrictions protects the value of the claim.

It applies to every kind of loss. One model instruction tells jurors the rule applies to all types of damages, including medical expenses and pain and suffering.

Who has to prove a failure to mitigate?

Usually the at-fault side. A model jury instruction puts the burden on the defendant, not the injured person, to prove that more likely than not the damages could have been prevented by reasonable measures. You do not have to prove you did everything right; they have to show what you did wrong and what it cost.

We did not find Texas or Arizona pattern instructions on mitigation on a government site to quote here, so check your state's rule if the issue comes up.

Mitigation of damages vs. comparative negligence

Comparative negligence looks at whether you helped cause the accident, like speeding or not watching your step. Mitigation looks at what you did after you were hurt. A person can be zero percent at fault for the crash and still have damages reduced for not following treatment.

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