Mitigation of Damages: Its Meaning and Your Responsibility

Jul 18

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Under Florida law, plaintiffs must take reasonable action to mitigate damages caused by a defendant. Failure to do so can result in affirmative defense that may void the plaintiff’s case.

Today, we’re discussing the duties of wronged parties to avoid unnecessary consequences, even when they weren’t originally at fault.

What is mitigation of damages?

The mitigation of damages doctrine, sometimes called the doctrine of avoidable consequences, is in place to prevent wronged or injured parties from seeking compensatory damages that could have been avoided.

Who decides if someone fails to mitigate damages?

Juries typically decide whether or not a plaintiff adequately mitigated damages. They consider what a reasonable person would do under the circumstances and compare the plaintiff’s actions to this hypothetical scenario.

The jury will weigh the factors surrounding the case, such as how long the plaintiff waited to take action, the expenses required to remedy the situation, and the steps taken to mitigate damages.

What happens if you fail to mitigate damages?

In some cases, failure to mitigate damages can result in a lower payout at the end of a court case. If a defendant can prove that the plaintiff’s actions caused increased damages, a jury is unlikely to award those damages to the plaintiff.

In other instances, failure to mitigate can be an affirmative defense for the defendant and may completely negate the defendant’s liability.

How does someone prove failure to mitigate damages?

Depending on the details of the case, the defendant may have expert witnesses testify that the plaintiff’s actions compounded the existing damages.

However, no two cases are the same, and the defendant may be able to prove failure to mitigate damages through other means. For example, suppose the injured party posted pictures on social media showing them performing strenuous activity when they should have been recovering from their injury. In that case, the jury may consider that photo evidence of their failure to mitigate.

In what cases is mitigation of damages the most common defense?

Some court proceedings see more instances of failure to mitigate damages than others. Here are a few of the most common.

Personal injury and tort cases

In personal injury cases, it’s essential for the plaintiff to promptly seek medical care, follow their doctor’s instructions, and take all prescribed medications. If the injured party waits weeks to see a doctor, refuses treatment, or fails to attend physical therapy, the jury is more likely to waive damages.

Under tort law, damages for harm or injury caused by negligence are also subject to mitigation of damages. If an injury caused by another’s negligence results in the victim losing their ability to work, but they make no effort to find other jobs that they are able to do, but ask the judge or jury to award them lost wages without trying to mitigate those damages, they may not be able to recover the full amount or anything at all for that failure to mitigate those damages.

Breach of contract

When a defendant breaches a contract, resulting in losses for the plaintiff, the plaintiff must make reasonable efforts to mitigate the damages.

In the famous case of Rockingham County v. Luten Bridge Co., the county decided to cancel a planned bridge project after construction had begun. Luten Bridge Company continued building despite the breach of contract and later sued the county for damages. The jury sided with Rockingham County, as a “reasonable person” would have stopped construction–thus mitigating further damages–when the breach of contract was announced.

Real estate

Real estate laws also allow for the mitigation of damages. For example, if a tenant breaks their lease and moves out of an apartment, the landlord has a duty to reduce further damages by attempting to fill the empty unit with a new tenant.

What is comparative negligence?

Comparative negligence, also known as comparative fault, has recently changed within Florida’s legal system. The state has adopted a modified comparative negligence law that may benefit insurance companies more than accident victims.

Understanding shared fault

In Florida, a plaintiff can only recover damages when a jury determines that they are less than 51% responsible for an accident. As their share of responsibility increases, the amount of damages awarded decreases.

Previously, victims could receive compensation even if they were 99% at fault.

Reducing liability

Comparative negligence is considered a partial defense argument for a defendant. It can help the accused party reduce their level of liability by showing that the plaintiff was at fault to some degree. Of course, they must be able to prove fault on behalf of the plaintiff. This can be through witness testimony, photos, security or dash camera footage, or other compelling, admissible evidence.

Mitigation of damages vs comparative negligence

Both mitigation of damages and comparative negligence are based on the plaintiff's actions–or inaction. However, mitigation of damages only comes into play after the initial incident. Comparative fault relates to the parties involved in the event in question.

Navigate damages mitigation with Busciglio Sheridan & Schoeb

At Busciglio Sheridan & Schoeb, we are dedicated to providing our clients with the highest level of care. Whether you’re the victim in a personal injury case, breach of contract, or other tort offense, we will help you navigate the law and fight by your side to help you get the justice you deserve.