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Duty to Mitigate Damages

Duty to Mitigate Damages

What Is the Duty to Mitigate Damages?

If you were injured in an accident, and this accident was the fault of another party, then you have a right to seek compensation for your damages. This is the basic precept on which the entire personal injury system is founded. You would be surprised to find out, however, that as an accident victim you don’t only have rights, but duties as well. Once such duty is the duty to mitigate damages. We feel that this area of the law is often not clearly explained to clients, so we decided to write this article to educate our clients and our readers.

The duty to mitigate damages means that, even as a legitimate accident victim, you are required to take reasonable steps to lessen the size of your damage. If you do not take these steps, then you may be limited in the types of damages you can collect to only those damages that would have been caused with proper mitigation of same.

It’s easy to see why the duty to mitigate damages exists: you cannot justifiably expect a blank check of the defendant in a personal injury case. No matter how legitimate your claim may be, you do not have the right to make the case more expensive for the defendant than it has to be.

If you are the plaintiff in a personal injury case, the duty to mitigate damages is something that you will need to take into account in the immediate aftermath of an accident. If you do not, then it could cost you big. This article is designed to explain what steps you should take to comply and fulfill this duty and to save yourself from getting stuck with unpaid bills.

California Civil Jury Instructions on the Duty to Mitigate Damages

In California, the precise legal code concerning the duty to mitigate damages in a personal injury case can be found in California Civil Jury Instructions (CACI) No. 3930.

This section reads:

If you decide [name of defendant] is responsible for the original harm, [name of plaintiff] is not entitled to recover damages for harm that [name of defendant] proves [name of plaintiff] could have avoided with reasonable efforts or expenditures.

You should consider the reasonableness of [name of plaintiff]’s efforts in light of the circumstances facing [him/her] at the time, including [his/her] ability to make the efforts or expenditures without undue risk or hardship.

If [name of plaintiff] made reasonable efforts to avoid harm, then your award should include reasonable amounts that [he/she] spent for this purpose.

This might all sound rather legalistic and complicated, but there are a few important things we can learn from reading this definition.

First, the instructions recognize that reasonableness is somewhat relative, and relies on a variety of external factors. If you have significant time, money, and other resources at your disposal, what constitutes “reasonable” in your case may be very different from what is considered reasonable for someone with fewer resources.

This is good news for you if you are in a tight position, because it means that the jury will have to take your difficult circumstances into account.

Second, the total damages that you will be able to recover in the case will include the amounts you spent to mitigate damages. Let’s say that you spent $100 on a course of action which would decrease your damages by $200. You will be able to collect that $100 as part of your total damages.

Third, a claim of failure to mitigate damages is an affirmative defense, which is to say the burden of proof is on the defendant. They are the ones who will have to demonstrate that you failed to mitigate damages. If they cannot do this, the court will presume that you took all sufficient steps to do so.

Finally, as mentioned in the footnotes of the jury instructions, you are not required by the duty to mitigate damages to surrender any of your basic rights or do anything of which you are incapable, you merely need to do what a reasonably prudent person would have done in your situation.

How the Duty to Mitigate Damages Works in Practice

The duty to mitigate damages applies in the following situations:

  1. Rental car. Let’s say that your car was damaged in a car accident, and you are required to rent a car. Would you be able to rent the coolest car you can find? No; when renting a car, you will typically only be compensated for renting a car of comparable value. Please note that you are also expected to carry insurance for the vehicle that was damaged in the accident, hence, insurance companies typically do not cover any extra insurance on the rental car and should you obtain any extra insurance on the rental, you will be out of pocket for it.
  1. Storage fees. If your car is not driveable, you must take steps to expedite your claim in order to minimize your rental expenses and storage fees. Report the claim to insurance company right away—they do not cover damages caused as a result of unreasonable delays in reporting the claim. Move your vehicle to a free storage facility if possible; insurance companies will not pay for the extra storage or rental charges caused by you dragging your feet and delaying reporting the claim or arranging for your car inspection. If you have comprehensive collision coverage, you are required to use that to process your property damage. That is because it’s is a lot faster. You see, the bad guy’s insurance company has some rights, specifically, they have a right to investigate how the accident happened, including getting a statement from their insured, talking to the witnesses and getting a police report and other available evidence. That process takes time and it may take a while to investigate the accident, and if your rental and storage bills are accumulating during this time, then this will be a violation of your duty to mitigate damages. However, don’t worry: if the other party is found at fault, then your insurance will seek reimbursement through the process of subrogation; your deductible will be returned and there will be no points added to your driving record.
  1. Totaled vehicles. If you believe that your car was totaled, you are required to start looking for a replacement car right away, because most insurance companies will only give you rental coverage for a limited number of days.

It’s important to note that you won’t collect zero compensation in these situations. You’ll still be permitted to recover reasonable damages, such as what the cost of the car storage; rental; or treatments would have been had you acted more responsibly. However, anything above and beyond this – anything caused by your failure to mitigate damages – will be on you.

It’s also important to note that the duty to mitigate damages is not endless. You are only required to take reasonable steps to do so.

What is reasonable? That’s a more complicated question than you might think.

On one hand, part of the definition of reasonableness can be measured objectively, and this involves a fairly straightforward mathematical cost-benefit analysis of the options before you. However, there is necessarily some degree of ambiguity in the definition of reasonableness, and what is reasonable will vary from situation to situation.

The main takeaway for you, though, is that the duty to mitigate damages is limited. The law does not expect you to make a Herculean effort in trying to scrape every cent possible off your final bill. It merely expects you to take the steps that an ordinary reasonable and responsible person would take to minimize cost.

It is helpful to think about the steps you would take to reduce costs if you had to foot the bill instead of the defendant, and base your decisions off of that.

Medical Treatment

If you were injured in an accident, you are expected to seek medical care right away. That is because you are expected to act as a responsible person would and a responsible person would seek medical treatment right away. But what if you instead lay around and do nothing to fix your injury, and as a result you ended up needing much more serious medical treatment later? In this case, you will also not be allowed to collect compensation for these extra damages which came about as a result of your own failure to act.

Once you have begun medical treatment, it is important that you consistently follow your doctor’s orders, attend all of your doctor appointments and follow through with the recommended treatment. If you fail to do so, and this lengthens your healing time, then this, too, may be taken as a failure to mitigate damages.

Finally, some people believe in alternative treatment forms which fall outside the scientific mainstream and are not approved by insurance. Be weary, if you seek such treatment, the defense may refuse to cover it, even if you feel that it has helped you.

Lost Wages

If you can prove that your doctor has put you off work as a result of an accident, which caused you to miss work or lose your job, you are entitled to recover damages for lost wages or lost future earnings. However, you must mitigate damages here as well, by ensuring that you do not miss more work than you need to in order to recover from your injury.

If you are unable to keep your job, but you have the ability to pursue another comparable job, then you are obligated to make a good faith effort to seek employment or occupational training (including education) to make up for your losses, even if your salary in the new line of work does not equal your previous salary.

Here, the duty to mitigate damages can be rather expansive in what it requires you to do. For instance, your obligation to seek a new job in good faith means conducting yourself respectably in job interviews, and not doing anything to self-sabotage during this process. You might not think that the law would reach into such personal matters, but it does.


By now, you might be a bit worried. The duty to mitigate damages is extremely complicated, and reaches into just about every corner of a personal injury case. This can make you feel like you are walking a tightrope.

However, you do not need to panic just yet. For one thing, as we mentioned, the duty to mitigate damages is limited by reasonableness, and allowances will be made for the human element. For another, with the right attorney on your side, you can much more easily handle the duty to mitigate damages.

If you have been injured in an accident, don’t delay, contact the Law Offices of Jennie Levin, P.C. right away at(323) 951-1188 to speak with our attorney. We will do all that we can to help you. Also, if you found this article interesting and you believe that your friends would be interested in learning more about this, then share on FacebookTwitter, and other social media. Finally, feel free to leave us a comment, and let us know what questions you would like us to answer next!