Mitigating Personal Injury Damages in Texas
Written by Greg on April 2, 2013
Mitigating damages means minimizing your damages and it is a concept the law recognizes in certain circumstances. For personal injury victims, it means getting necessary treatment before your condition deteriorates and is made worse.
In other words, defendants can seek to claim that a person failed to “mitigate” damages, which actually may damage is more significant and a defendant seeks to avoid paying those “additional” damages.
Generally, the Mitigation Of Damages law is set forth in Texas Civil Practice & Remedies Code – Section 147.123 b, which states:
“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”…
The finder of fact is generally the jury selected for the case but it also can be the judge in a case that is dried to the bench. In other words, the persons determining the facts of the case will decide whether that a person took necessary steps to avoid increasing damages or to “mitigate” their damages. The theory under the law is that a defendant should have to be reasonable and how they act, and the victim should be reasonable and how they deal with their injuries and damages.
Mitigation of damages is not automatic but instead is an “affirmative” defense, which must be pled by the defendant. In effect, a personal injury victim is charged with the responsibility of reasonable care to minimize his or her damages if it can be done with slight expense and reasonable effort. Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex. App.-Fort Worth 2006, pet. denied).
The mitigation of damages issue can arise once pled in situations where a plaintiff could have fairly easily obtained the medical treatment prescribed by his or her doctors, but chose not to get that care, and the condition deteriorated requiring additional medical which was not previously necessary.
It should be noted that the duty to mitigate affirmative defense has to be proven by the defendant, once they have fled the defense.