Many individuals are aware that they have a right to be compensated for an injury or loss caused by another individual who owes them a duty. However, it is also important to know that as the injured or non-breaching party there is also a duty. This is called the duty to mitigate.
What is Mitigation of Damages?
Mitigation of damages is a defense that can be raised by a defendant. This defenses states that an injured party cannot recover expenses that were avoidable with reasonable effort. Thus, if the defendant demonstrates that the injured party did not take reasonable steps to alleviate themselves of further harm, the defendant will not be held responsible for the losses that were avoidable by the injured party.
When may this defense arise?
The duty to mitigate damages can arise in a number of different cases including, but not limited to, personal injury and real estate cases.
- Personal Injury. The duty to mitigate may occur in personal injury cases in the form of medical malpractice. For example, if a surgeon commits malpractice causing an individual temporary injury that can be relieved with physical therapy, but the injured individual refuses to go to physical therapy, in turn making their injury worse, the surgeon will not be held responsible for further injury outside of what they specifically caused.
- Real Estate. The duty to mitigate may occur when one party breaches a lease, leaving the non-breaching party with a duty to mitigate his or her damages. For example, if a landlord and a tenant sign a lease then the tenant breaks the lease by moving out early, the landlord cannot let time and rent payments accumulate without taking reasonable efforts to find a new tenant to occupy the property. The tenant will not be responsible for the payment that the landlord could have avoided.
What are reasonable steps to take?
Reasonable steps vary depending on the case. Some reasonable steps include seeking the appropriate medical care, following doctor’s instructions, finding different contractors to fix leaks if others have breached, returning to work when allowed to avoid further financial losses, and finding replacement tenants.
The legal duty to mitigate is not dependent on whether the efforts were successful but whether they were reasonable steps to limit harm.
