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PKSD explains what this legal duty is and how failing to mitigate your damages could significantly impact the amount of compensation you recover.
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Similar to other states, Wisconsin permits injured victims to seek compensation for damages caused by another’s negligence. This could include things like:
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.
Refusing medical care at any point could be seen as a failure to mitigate damages. Other common examples could include:
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.
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.
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.
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.
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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.”
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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Jeffery A. Pitman, who has more than 28 years of legal experience and handled thousands of personal injury cases while obtaining millions of dollars in verdicts and settlements in Wisconsin.
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