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Mitigate Damages

Mitigation of damages is an important concept in personal injury law and contract law. The duty to mitigate damages is based on the idea that a defendant should not have to compensate you for losses that you could have avoided through the exercise of reasonable care. In other words, after an injury, it is your duty not to make things even worse and then demand that the defendant pay for your irresponsible behavior.

How Affirmative Defenses Work in Oregon

If you are suing a defendant in Oregon for personal injury and they raise an affirmative defense, the burden of proof is reversed. Normally, you must prove the claim since you’re the one who brought the lawsuit in the first place. With an affirmative defense, however, the defendant must prove their claim–in this case, the claim that you failed to mitigate your damages.

Background: The “Preponderance of the Evidence” Standard

Regardless of whether it’s you trying to prove the defendant’s liability or the defendant is trying to prove that you failed to mitigate Damages, you don’t have to prove your claim “beyond a reasonable doubt.” 

All you need to meet is “a preponderance of the evidence” standard, which means more likely than not. The defendant must apply the same standard to prove that you failed to mitigate your damages.

The Legal Elements of the “Failure to Mitigate Damages” Defense

To prevail in their affirmative defenses, the defendant must prove the following :

• You had the opportunity to mitigate your damages. Mitigation of damages is not always possible.
• You failed to take reasonable steps to mitigate your damages.
• At least some of the damages you are claiming arose directly from your failure to mitigate your damages.

Failure to mitigate damages is usually a partial defense. For the defendant, “winning” in this context means a reduction in the amount of compensation that the defendant owes you.

Suppose, for example, that you’re asking for $100,000 in compensation. Further, suppose the defendant proves that if you had followed your doctor’s instructions to the letter, you could have saved $30,000 in medical expenses. That would still leave you with $70,000. 

Examples of Failure to Mitigate Damages

The following are some common ways of failing to mitigate damages: 

• You delay seeking medical treatment after an accident. You might have underestimated the seriousness of your injuries since some injuries take time to generate symptoms.
• Failure to follow your doctor’s orders. Not taking your medicine every morning, for example, deviating from your doctor’s treatment plan, not attending follow-up appointments, etc.
• Not using medical devices such as crutches, braces, or wheelchairs. It might constitute a failure to mitigate damages if you fail to use these, re-injure yourself, and then use the second injury to pad your damages claim.
• Engaging in activities that could exacerbate your injury. Any unnecessary physical activity, even working, could constitute a failure to mitigate damages if it causes re-injury. On the other hand, you might be obligated to seek less physically demanding employment if you can perform it safely.
• Failure to pursue physical therapy when your doctor recommends it. This could undermine your ability to work in the future.
• Failure to promptly report adverse changes in your medical condition. A doctor might need this information to adjust your treatment plan.
• Failure to seek a second opinion. Failure to seek a second opinion is only very occasionally treated as a failure to mitigate damages.
• Not taking reasonable steps to reduce financial losses associated with your injury, such as filing for disability benefits if you are unable to work.
• Failure to cooperate in legal and medical processes: This includes providing information and paperwork as necessary.

There are many other possible means of mitigating damages, depending on the circumstances of your case.

How a Defendant Might Prove Failure to Mitigate Damages

A defendant might offer the following evidence, among other evidence, to prove their failure to mitigate damages defense. 

If a lawsuit is ongoing, the defendant might gather some of this evidence during the pretrial discovery process, including: 

• Medical records
• Witness testimony
• Prescription records
• Correspondence with insurers
• Appointment logs demonstrating your absence or inconsistent attendance at medical appointments.

This is just the tip of the iceberg of potential evidence of failure to mitigate damages.

Negotiation vs. Litigation

Not all personal injury claims mature into lawsuits. Even among those that do, most parties manage to settle before trial. All of the dynamics described above should apply to negotiations as well. The defendant will certainly bring up any mitigation of damages claim during negotiations. 

Contact a Portland Personal Injury Attorney for a Free Consultation

If your case is serious enough to generate a “failure to mitigate damages” defense, you probably do need a Portland personal injury attorney to help you maximize the value of your claim. A good attorney might be able to multiply the amount of compensation that you qualify for.

Contact our lawyer from Tillmann Law at (503) 773-3333 for a free consultation and to learn more about mitigating damages.