The law allows injured parties to pursue damages that can be proven with a reasonable level of certainty. Although some types of noneconomic damages may often be viewed as rather subjective and hard to quantify, damages that appear purely hypothetical or overly speculative are generally not recoverable. Often the process of determining losses is challenging and requires assistance to complete a valuation by experts such as a forensic accountant or economist. When parties in a claim begin reviewing and scrutinizing the losses and expenses incurred, an issue that may arise involves the mitigation of damages doctrine. This refers to a duty that the injured party must avoid incurring additional injuries or related costs that unnecessarily inflate the amount of potential damages.
Types of Damages
If a plaintiff is deemed to have failed in his or her duty to properly mitigate damages, the resulting increase in costs or expenses may not be recoverable. The three types of damages (classifications) that arise in civil injury litigation are:
- Economic damages include monetary losses, like past and future medical costs, past and future lost wages, and damage to property.
- Noneconomic damages include damages that may require a jury to determine the economic value of things like pain and suffering and loss of enjoyment.
- Punitive damages are damages that are rarely awarded unless the defendant’s actions can be proven as malicious, intentional, or fraudulent, and are intended to punish the defendant for such action.
Understanding the Duty to Mitigate
The duty to mitigate damages applies to actions that may reduce the plaintiff’s award for damages. This doctrine may be referred to as the duty to “minimize damages” or the doctrine of “avoidable consequences” or something similar. In Colorado, a failure to mitigate damages is a defense that may be employed. It requires the defendant to prove the plaintiff had neglected his or her duties. A defendant may assert that the plaintiff failed to make a reasonable effort to minimize further injury or expenses.
What is Considered “Reasonable”?
As an example, we assume that a plaintiff suffered a broken leg. The injured party chose not to obtain prompt medical treatment, which led to a worsening of the condition and an amputation of the leg was needed. The extent of the defendant’s damages would remain only at the amount required to repair the broken leg. Here, it is clear that a reasonable individual would have promptly sought medical attention. What if the injured party was left unable to walk and stranded in a remote location with no vehicle or ability to call an ambulance for several days? In this instance, if the broken leg was then left untreated and needed to be amputated, the defendant would still remain liable for the subsequent (progressive) injuries and expenses.
Colorado Court of Appeals Case: Banning v. Prester (2012)
Prester, the defendant, acknowledged liability for Banning’s injuries in the case; however, he challenged the extent of the damages by raising an affirmative defense of failing to mitigate. The assertion was based on evidence that the plaintiff failed to adhere to the treatment plan of her medical provider. Banning did not complete her physical therapy, continued to smoke cigarettes, and also underwent more expensive treatment options. In many cases where a failure-to-mitigate defense is used, it is based on the plaintiff’s inaction or excessively delayed action relating to the injury.
Common Examples of Failing to Mitigate
- Failing to promptly obtain appropriate medical treatment
- Relying exclusively on alternative therapy methods, holistic treatments, or home remedies that may be interpreted as unreasonable
- A failure in adherence to the recovery or rehabilitation plan as suggested
- Not returning to work in some alternate capacity or taking initiative to receive training or education for another occupation or trade
When you are injured in a vehicle accident, it is important to promptly seek appropriate medical care. It is also important to follow any instructions from your doctor that relate to your recovery, like returning for follow up appointments, participating in forms of therapy, or other rehabilitation. In these matters, it is also important to retain experienced legal assistance from an attorney that will work on your behalf to recover the maximum compensation to which you are entitled.