In New York, accident victims have a duty to mitigate their damages. What does this mean, and what steps should you take? A New York personal injury lawyer atLarson & Gallivan Law explains more in this article.
Damages in Personal Injury Cases
Our lawyers bring personal injury claims to obtain financial compensation for our clients. We don’t simply guess how much money you should receive. Instead, we request compensation for your damages:
- The cost of medical care to treat any injuries you suffered in an accident.
- The income or wages you lost when your injuries kept you out of work.
- The total cost for repairing your vehicle, if it was damaged in an accident, as well as any other damaged property.
- A reasonable amount for your pain and suffering.
Our legal team also compiles evidence to back up our calculation of damages. For example, we can prove medical costs by submitting copies of your medical bills, as well as prescription receipts. Something like pain is more subjective, but we still use evidence to back up, such as statements from family and friends about how the injuries have changed you.
What is the Duty to Mitigate Damages?
Accident victims have a duty to take reasonable steps to mitigate their damages. Essentially, this means you must take steps to keep your damages from getting worse.
Imagine the following scenario. You feel lower back pain after a car accident, but you don’t go to the doctor. In the next couple of months, your back condition worsens, and before you know it you have a degenerative condition which will lead to permanent disability and pain. Had you immediately gone to the hospital, a doctor could have put your back in a brace and your injury would have healed. Instead, you are now disabled.
In this example, you failed to mitigate damages because you did not receive prompt medical care. A bad condition became much worse through your own inaction. If you try to seek full compensation for a disabling back injury, the defendant will likely allege you failed to mitigate damages.
How a Failure to Mitigate Differs from Comparative Negligence
New York also has a comparative negligence law.CPLR § 1411 says that your contributory negligence will reduce your damages proportionally. So if you are 50% responsible for the accident, then you will receive at least 50% less in damages.
There is a logical distinction between the two:
- Comparative negligence asks if your negligence before the accident contributed to it.
- A failure to mitigate considers whether you failed to take reasonable steps after the accident, which made things worse.
Both can reduce the compensation you receive.
Consequences of a Failure to Mitigate
A defendant can raise a failure to mitigate damages as a defense in a personal injury case. You can expect the defendant to point to reasonable steps you could have taken to lessen your damages after the accident.
If your case goes to trial, the jury could agree with the defendant and reduce your compensation. That’s unfortunate, but there’s a logic behind it. Because you could have lessened the damages suffered, the defendant shouldn’t have to pay you for the increase in medical expenses, lost income, and pain and suffering.
What Steps Should You Take to Mitigate Damages?
The law does not require that you use heroic efforts to mitigate damages. However, you need to take some sensible steps:
- Seek medical care as soon as possible. You should not try to self-diagnose by visiting Healthline or the Mayo Clinic website. Instead, go to the hospital or visit your doctor. If you don’t have health insurance, contact an attorney to discuss options. You might need to pay for your health care with a credit card. However, the last thing you should do is just stay home and grit through the pain.
- Follow your doctor’s orders. Your doctor’s treatment plan might include follow up appointments, surgery, painkillers or steroid injections, and/or physical therapy. Your doctor wants you to get well. We recommend following the treatment plan closely. Don’t miss appointments or fail to attend physical therapy. Of course, if you aren’t confident your condition is improving, then you should seek a second opinion from a licensed physician.
- Return to work when you can. As explained above, we seek damages for lost income or wages. Many people are so injured they can’t immediately get back to work. However, once you feel okay, you should certainly return to your old job or, if it’s no longer open, find a new one. Your duty to mitigate damages might mean accepting a new job, which you can perform even with your limitations. For example, a moderate traumatic brain injury could leave you unable to stand for extended periods of time, which means you can’t return to your job as a security guard. But you could possibly still work a desk job.
- Avoid aggravating your injuries. Some patients refuse to sit still. Instead, they might head out to the ski slopes or start playing basketball at the first opportunity. Your doctor probably recommends light exercise to aid in recovery but take it easy at first. If you end up aggravating your injuries, you will end up with uncompensated medical expenses.
- Protect your vehicle. If an accident damages your sunroof, the last thing you should do is leave the car outside in the rain. Our lawyers recommend not immediately repairing your car. Let a lawyer inspect it first. However, try to store it in a garage or put a covering over it.
