Why Mitigating Damages is Your Legal Duty After an Injury

Posted on behalf of Jeff Pitman on February 27, 2023 in Personal Injury
Updated on April 24, 2024

mitigating damagesIf you were injured due to another person’s negligence, you already have a lot to manage. As a victim seeking compensation from the at-fault party, however, you have more than your physical pain and financial costs to deal with. You also have a legal duty to be mitigating damages resulting from your injuries.

PKSD explains what this legal duty is and how failing to mitigate your damages could significantly impact the amount of compensation you recover.

Need help getting full and fair compensation after an injury? Not sure how to mitigate your damages? Call our law offices today to schedule a completely FREE case review with a highly trained personal injury lawyer in Milwaukee. In this no-risk meeting, you can find out if you have a case and how we can help.

If you choose our firm to represent you, there are ZERO upfront costs to pay. We are prepared to fully manage your case, which includes helping you avoid mistakes that could hurt your claim.

Request your FREE case review today: 414-333-3333

What Does Mitigating Damages After an Injury Mean?

Similar to other states, Wisconsin permits injured victims to seek compensation for damages caused by another’s negligence. This could include things like:

  • Surgical costs
  • Diagnostic testing
  • Payment for doctor services
  • Emergency transportation from the accident scene
  • Follow-up doctor appointments and treatment
  • Physical therapy
  • Medical devices, like crutches or wheelchairs
  • Pain and suffering
  • And more

That said, there is a caveat. What the law does not want is victims piling up unreasonable damages to their claims. This is why the law gives you a legal duty when filing an injury claim. That duty is to take reasonable steps to minimize your damages.

Mitigating damages also helps you. When you take these reasonable steps, it means you are also doing what you can to recover.

How Can a Victim Fail to Mitigate Damages?

Refusing medical care at any point could be seen as a failure to mitigate damages. Other common examples could include:

  • Not seeking medical care after the initial incident that caused your injuries and resulting damages
  • Participating in activities that your doctor tells you to avoid because they could risk your recovery or make your injuries worse
  • Not completing your medical care, including physical therapy, which your doctor recommends to aid your recovery

Does Mitigating Damages Cost Me Money?

Mitigating damages begins immediately after you are injured in an accident, so not every step will cost you money. For instance, say you have just been hurt in a car crash and there is a lot of passing traffic. Getting out of your car could cause you to get hit by another vehicle. The reasonable step in that situation would be to move your car, if possible, or to remain inside your vehicle until help arrives.

It is fair to say, however, that taking reasonable steps to mitigate damages could cost you some money up front. For instance, you are likely to need diagnostic testing right after an accident to find out where you are hurt and how badly. Depending on what the doctors discover, you may then need surgery or some other medical intervention. You may even need physical therapy when your injuries have healed further.

This care may be considered both reasonable and necessary to aid your recovery and reduce the amount of time you are unable to work. In a situation like this, it is possible that you may need to cover some of these costs up front. However, you should be tracking all your medical bills and other costs you incur throughout the legal process. Your attorney will use your invoices and other evidence of your damages to calculate the full amount of compensation you are owed.

What Could Happen if a Victim Fails to Mitigate Damages?

In an injury case, failing to mitigate damages is known as an affirmative defense. The defendant can use this legal defense as a means to reduce his or her liability for your damages. In other words, it gives the at-fault party an opportunity to give you less money for the losses you suffered.

The burden of proving a failure to mitigate damages falls on the defendant. The way this happens is the defendant must produce evidence showing how you failed to mitigate damages. For example, if you missed doctor’s appointments without good reason or did not avoid activities the doctor said could worsen your injuries. If the defendant can prove this, then he or she reduces his or her liability for your damages.

In order to do this, the at-fault party must raise this defense in response to the complaint you filed against him or her. If the defendant fails to raise this defense, it cannot be used at a later time.

Who Determines Whether There Has Been Reasonable Mitigation of Damages?

Ultimately, a jury will review your actions following your injury to determine if you took steps to prevent creating more damages than was reasonably necessary. If it is determined that you did not minimize causing more damages, then it could significantly reduce the amount of compensation you are able to recover.

Need Help With Your Injury Claim? Call PKSD Today

If you were injured by the negligence of another person, you may wonder how to reasonably mitigate damages during an injury case.

At PKSD, we have been representing injured victims for decades. We are fully prepared to help you with mitigating damages and take other reasonable steps to help protect your claim.

Request your free case review today to learn if you have legal options and how our firm could benefit your claim. Contact our law offices 24/7 to get started.

Proven results. Millions recovered. 414-333-3333

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