What Is the Duty to Mitigate a Personal Injury Case?

Posted in Accident Information on June 8, 2021

As the victim of a personal injury accident, you may not realize that you have certain duties of care. For example, you have a responsibility to mitigate your damages and losses as much as possible. If you fail to fulfill the duty to mitigate, you could receive a reduced payout from an insurance company – or a denied claim altogether. Learn more about your duty to mitigate to better protect your right to recover financial compensation in Nebraska.

What Does it Mean to Mitigate Your Damages?

Mitigate means to reduce or minimize. In personal injury law, the duty to mitigate is a victim’s responsibility to take reasonable steps to minimize the consequences of an injury or accident. If you get injured in an accident in Omaha, you could be eligible for financial compensation from the person or party that caused the accident. If you contributed to the extent of your injuries by failing to mitigate your damages, however, you could be partially at fault and less eligible for recovery.

The responsibility to mitigate only goes as far as what is ordinary and reasonable. You do not have an obligation to take extraordinary steps to reduce your losses following an injury. You must only act in good faith and with due diligence to exercise an ordinary amount of care and reasonable judgment when seeking treatment for your injuries. Failing to do so, resulting in exacerbated injuries or losses, could negatively affect your injury claim.

How Can the Duty to Mitigate Impact Your Case?

If a prudent plaintiff reasonably would have done more to lessen the extent of your injuries or losses, you may be accused of failure to mitigate. This could lead to the loss of your right to recover the portion of damages that could have been prevented. Since Nebraska is a comparative fault state, if you are found to be 50 percent or more at fault for your current injuries and damages because of the failure to mitigate, you could be barred entirely from financial recovery.

If you are less than 50 percent responsible, however, you can still recover a partial award. The courts will simply reduce your recovery by your percentage of fault. For example, if you reasonably could have prevented an additional surgery and several weeks of being unable to work had you gone to a hospital right away, the courts would leave your preventable damages out of your recovery award.

Ways You Can Mitigate Your Damages

It is important to take your duty to mitigate seriously as an injured accident victim. The duty to mitigate requires a plaintiff to take reasonable steps to minimize the severity and effects of an injury. What is reasonable depends on the circumstances and what a rational victim would have done in the same circumstances to reduce the extent of the injury. In general, you should take the following steps to protect your wellbeing and fulfill the duty to mitigate:

  • Go to hospital or doctor right away
  • Follow your doctor’s treatment plan exactly
  • Follow your doctor’s recommendations, such as by undergoing surgery
  • Attend all follow-up appointments
  • Act reasonably to minimize your injuries

Delaying your doctor’s appointment after an accident, choosing not to undergo a surgery that could significantly lessen the consequences of an injury or ignoring your doctor’s treatment plan could all lead to an allegation that you failed to reasonably mitigate your damages. This could ultimately reduce the payout you receive for your injuries, medical bills, pain and suffering, and other losses.

Taking reasonable actions to reduce your losses after an accident, on the other hand, can maximize the outcome of your injury claim. It will prevent the defendant from using the defense that you failed to mitigate your damages. This can help you and your family obtain fair financial compensation for the full extent of your injuries and related losses.

For more information about how to mitigate your damages, or for assistance combatting this defense in a personal injury case, contact an attorney in Omaha.