Mitigation of Damages
- 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.
- 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.
- Stated more broadly, P cannot recover for damages that P could have avoided if P had acted reasonably; P contributes to his damages.
- Test: What would a reasonable person do under the same circumstances?
- When considering if P failed to mitigate damages by not having surgery, consider what an ordinary prudent person would do.
Factors to consider:
- risk involved
- probability of success
- expenditure of money or effort
- This is not the same as contributory negligence where P contributed to the happening of the accident or injury.