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Failure to Mitigate Damages in Personal Injury

Chad West Sept. 27, 2021

If you’ve been injured in a car accident, slip-and-fall event, medical malpractice, or workplace injury, it can be easy to feel helpless about your injuries. It’s stressful to deal with paying bills, potentially being unable to work, attending medical appointments and trying to recover from the injuries you’ve sustained. However, personal injury claimants need to understand that they must take steps to minimize the financial impact of their case. State law stipulates that a claimant bears a proportionate responsibility to avoid further harm to themselves and others.

Failure to mitigate damages is a common defense in personal injury cases of all kinds. While it may not eliminate a settlement, a successful defense may significantly reduce the amount of compensation an injured party receives.

In Texas, the Civil Practice and Remedies Code addresses mitigation of damages as follows:

“In all actions not governed by Subsection (a) [proportionate responsibility], the court shall instruct the finder of fact regarding a claimant’s duty to mitigate or avoid damages in a manner appropriate to the action using the appropriate approved pattern jury charge which may be modified by the court as appropriate to the circumstances.”

In layman’s terms, the finder of fact (usually the jury, but occasionally the judge if a bench trial) will evaluate whether the claimant or injured party took reasonable steps to mitigate or to prevent the risk of further financial damages. If you have been injured but did not take steps to mitigate or guard against further damages, you may not receive the amount of compensation you seek, and no reasonable jury or judge would award such damages.

Here are some examples of failure to mitigate damages in personal injury:

  • Failing to seek medical evaluation immediately following an injury resulting in further injury.

  • A physician recommends medical treatment, but the claimant chooses not to receive it and their medical condition gets worse thus necessitating further (and more expensive) treatment.

  • Failure to seek other employment if claiming lost wages because of your injury.

  • Failure to seek transportation to work if claiming you can’t get to work because your car was wrecked.

  • Failing to alert a property owner (such as a landlord) of a hazard on the property that needs to be repaired resulting in an injury to a tenant.

  • If you’re in a car wreck but fail to pull off the road resulting in further injury or damage to your vehicle.

  • Not following medical advice resulting in further injury by exacerbating your existing injury.

If you’re involved in a personal injury case and you want to improve your chances at a fair financial settlement, ask yourself, “Is there anything I can do to improve this situation?” It may seem overwhelming while dealing with an injury, but claimants MUST take reasonable action to limit the financial damages that incur because of their injury.

Need help? Our skilled Dallas personal injury legal team can work with you to find a medical provider, get the treatment you need and secure the financial recovery you deserve following an injury accident. Call us to discuss your case.

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