Mitigation of Damages in Texas Personal Injury Cases

November 19, 2021 by Greg Baumgartner

What are Mitigating Damages?

Mitigating damages means minimizing your damages, a concept the law recognizes in certain circumstances. For personal injury victims, it means doing things to keep things from getting worse, including receiving necessary medical 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 means they claim the injured person did not take reasonable steps to keep injuries from getting worse. The defendant seeks to avoid paying those “additional” damages.

In short, saying one did not address their injuries adequately, an insurance defense lawyer seeks to limit damages.

What is the Law in Texas about Mitigation of Damages?

Generally, the mitigation of damages law is outlined in the 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 tried on the bench.

In other words, the persons determining the facts of the case will decide whether a person took the necessary steps to avoid increasing damages or “mitigate” their damages.

The theory under the law is that a defendant should have to be reasonable in how they act, and the victim should be reasonable in dealing with their injuries and damages.

Mitigation of Damages is an Affirmative Defense

Mitigation of damages is not automatic but an “affirmative” defense, which the defendant must plead. If a defendant does not raise the defense, it is waived.

In effect, a personal injury victim is charged with the responsibility of reasonable care to minimize damages if they can be done with a slight expense and reasonable effort  Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex. App.-Fort Worth 2006, pet. denied).  

When Does Failure to Mitigate Apply?

The mitigation of damages can arise when a plaintiff could have relatively easily obtained medical treatment but failed to do so.

This could include where you were injured in a car accident. And your doctor’s prescribed treatment. Still, the victim chose not to get that care, and the condition deteriorated, requiring additional medical, which was not previously necessary.  Another example would be a person hurt in a construction accident but did not seek medical help until after the injury worsened.

The duty to mitigate is an affirmative defense that has to be proven by the defendant once they have pleaded the defense. In other words, the burden of proof or such defense rests with the defendant. With multiple defendant cases, one of the defense attorneys will likely raise this defense.

Lost Wages may be subject to a Mitigation of Damages Defense.

In the personal injury context, if a person loses their job because of the injuries they sustained in an accident, they may be responsible for seeking other employment to mitigate their damages.

Defense lawyers frequently plead failure to mitigate damages when someone claims lost wages for losing their job but does not seek alternate employment.

Another example is when someone’s car is wrecked, and they can’t get to work. Mitigating damages would require the person to find alternative transportation to get to and from work.

Most Mitigation of Damage Claims Center Around Medical Care

If a personal injury victim was hurt in an accident that was not their fault, they should be able to collect full damages. However, if a defense attorney can convince a jury that the injured person did not reasonably deal with their injuries, the damages may be reduced. Another example of failing to mitigate damages happens when a personal injury claimant does not get prompt or timely follow-up care, which worsens the injury. Wondering how much a personal injury case is worth? Talk with an experienced attorney.

Failing to mitigate damages does not impact punitive damage cases, except possibly for applying the statutory damage caps.

Speak with a Leading Houston Personal Injury Attorney at Baumgartner Law Firm

The personal injury attorneys in Houston at Baumgartner Law Firm have helped victims of injury accidents for over three decades. Call us for a free consultation on your case.

If you have questions about mitigating damages in Texas or a personal injury case in Houston, call us to speak with one of Texas’s best personal injury lawyers.

Call (281) 587-1111!

Related Resources:

Can I Get Punitive Damages if I am Hurt by a Drunk Driver?3 Factors in Evaluating a Personal Injury Case in TexasCommon Defenses Used by Trucking Companies in Accident Lawsuits(Opens in a new browser tab)

What Are Punitive Damages in Texas?(Opens in a new browser tab)

Types of Damages in Personal Injury Cases in Texas(Opens in a new browser tab)

(Opens in a new browser tab)

(Opens in a new browser tab)