Torts II

Mitigation of Damages

Mitigation of damages, also known as the rule of avoidable consequences, requires a plaintiff to seek appropriate treatment for his injuries so as to reduce his damages.

  1. P has a duty to take reasonable steps to mitigate damages. In a personal injury claim, that means the P must seek appropriate treatment to effect a cure or healing and to prevent aggravation.
  2. Failure to Mitigate Rule (with regard to permanent injuries): P cannot claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to treatment, including surgery, if a reasonable person would do so under the same circumstances.
  3. Stated more broadly, P cannot recover for damages that P could have avoided if P had acted reasonably; P contributes to his damages.
  4. Test: What would a reasonable person do under the same circumstances?
  5. When considering if P failed to mitigate damages by not having surgery, consider what an ordinary prudent person would do.
    Factors to consider:
    1. risk involved
    2. probability of success
    3. expenditure of money or effort
  6. This is not the same as contributory negligence where P contributed to the happening of the accident or injury.