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Mitigation of Damages in Texas Personal Injury Cases

Texas mitigation of damages defense

What is Mitigating Damages?

Mitigating damages means minimizing your damages, and it is 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 to 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 how they deal with their injuries and damages.

Mitigation of Damages is an Affirmative Defense

Mitigation of damages is not automatic but instead is 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 in situations where 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 doctors prescribed treatment. Still, the victim chose not to get that care, and the condition deteriorated, requiring additional medical, which was not previously necessary.

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.

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.

Speak with a Leading Houston Personal Injury Attorney


If you have questions about mitigating damages in Texas, call us to speak with a Texas personal injury lawyer.

Call (281) 587-1111!




Greg Baumgartner

attorney greg baumgartner

Greg Baumgartner has practiced personal injury law since 1984. He holds not one but two law degrees and is a graduate of Trial Lawyers College. He is licensed in Texas and Colorado. Mr. Baumgartner has earned a reputation for exemplary results for his clients. And has been preeminent rated for decades and recognized by Top 100 Trial Lawyers, Super Lawyers, Expertise, Newsweek, Houstonia magazine, and many others. He has given educational talks to lawyers and many media interviews regarding personal injury cases.