Plaintiffs Have a “Duty to Mitigate” in New Jersey, Requiring Them to Minimize Damages in Order to Obtain Maximum Compensation After an Injury Due to Another Party’s Negligence.
When the word “duty” arises in an injury case, it usually refers to a legal responsibility held by the defendant to act with a certain standard of care in driving, maintaining their property, or engaging in some other activity that led to the plaintiff’s injuries. However, the plaintiff also has a duty in personal injury cases, known as the “duty to mitigate,” which can potentially reduce the amount of compensation they are able to recover from the defendant. Injury victims should be aware of this responsibility so they can receive the full amount of compensation they are legally entitled to after they are injured due to another party’s negligence.
Responding to Allegations of Failure to Mitigate in New Jersey
The duty to mitigate is an injured person’s responsibility to take reasonable steps to minimize the extent and, potentially, the nature of the damages they suffer. In a personal injury case, a plaintiff may seek compensatory damages for medical bills, temporary or permanent disability, disfigurement, loss of wages, and pain and suffering. In New Jersey, if a plaintiff is found to have failed to mitigate their damages by failing to obtain medical treatment or failing to seek alternative employment options, then the amount of compensation they are entitled to receive from the defendant will be reduced accordingly. It is the defendant’s burden to prove that the plaintiff failed in this duty.
What Happens if a Plaintiff Neglects Their Duty to Mitigate Damages?
A failure to mitigate does not prevent the plaintiff from recovering all compensation, but it may result in a downward adjustment in the amount of compensation they will receive. However, depending on how significant the jury finds the plaintiff’s failure to mitigate damages to be, this can result in a substantial reduction in compensation.
Examples of Failure to Take Reasonable Steps to Minimize One’s Losses after an Injury
Delaying Medical Treatment
Sometimes, a person might not realize they have suffered a particular injury immediately following an accident. There may be a delay in the onset of symptoms, or they may mistake their pain and symptoms for a more minor injury that does not require medical attention. Whether these types of actions constitute a failure to mitigate damages, all depends on whether the plaintiff’s actions or inaction were reasonable. Furthermore, even if a plaintiff unreasonably delays in seeking medical treatment, it is the defendant’s burden to prove that this delay resulted in damages, which the plaintiff seeks to recover compensation for, that could have been avoided through prompt medical attention.
Declining Surgery
If a plaintiff’s medical provider recommends surgery for the treatment of the plaintiff’s injuries and the plaintiff declines to undergo the surgery, then this decision may reduce the total compensation the plaintiff can recover to the extent that undergoing the surgery would have reduced the plaintiff’s overall damages. Now, that does not mean that the plaintiff has an obligation to undergo any and all surgeries available or recommended to them. The jury must weight the risks associated with the surgery against the potential benefits of the surgery. If the surgery is high risk for the patient, then they are not under an obligation to take on that risk just to potentially mitigate their damages. The key to this assessment is reasonableness.
Take the example of a very elderly woman who is injured in a car accident and breaks her hip. Perhaps without hip replacement surgery, she will become bed ridden, but given her age, doctors inform her and her family that there is a very high risk that her body would not survive the surgery and, even if she did, the rehabilitation needed post-surgery may be too taxing on her body. In this case, the jury may find that declining surgery is not unreasonable and doing so is not a failure to mitigate damages.
On the other hand, if a 40-year-old man is involved in an accident and requires knee surgery, which his doctor opines would result in a return to nearly full function of his knee and a significant reduction in pain and other symptoms, with minor risks associated with the surgery, yet the plaintiff declines the surgery, then a jury may find this to be unreasonable and find that the man failed to mitigate his damages.
Failing to Participate in Physical Therapy
Participating in physical therapy following an accident is often a critical component of an individual’s recovery. The amount of function and strength that one can regain from physical therapy, along with a reduction in pain and symptoms, can be very significant. If an individual fails to participate in physical therapy, either at all or as recommended by their medical team, their decision can result in the continuation of pain and loss of function, which could otherwise be avoided. The defendant may argue that having failed to mitigate their damages; the plaintiff should not then be entitled to recover compensation for pain or loss of function that could have been avoided.
Failing to Pursue Employment Opportunities
A plaintiff’s duty to mitigate does not just apply to their medical treatment. One type of loss for which a plaintiff can recover compensation following an injury is loss of future income. Let’s say that the injuries suffered by a plaintiff prevent them from engaging in the same type of work they did prior to the accident. Can the plaintiff then use the accident as an opportunity to stop working together and seek compensation for the loss of all future income? Only if their injuries render them incapable of obtaining any other employment. In these situations, the plaintiff may have a duty to obtain additional qualifications for new job opportunities. They also have a duty to seek employment opportunities even if the opportunities available to them after their injuries offer less pay. The plaintiff may then be able to recover compensation for the loss of income between the pay rates, but they have a duty to mitigate their financial damages by earning what money they reasonably can in the workforce.
Your Journey to Fair Compensation Starts with Experienced Legal Guidance
If you are pursuing compensation in a personal injury case, you should not go it alone. Defendants in injury cases are typically represented by their insurance companies and their lawyers. If the defendant claims that you failed to mitigate your damages in some way, you will have an opportunity to present a defense to this claim. However, arguments regarding the duty to mitigate damages often involve very detailed and technical medical evidence and expert opinions. If the claim of failing to mitigate centers around your choices in medical treatment, the case will very likely require the expert testimony of the treating physician and/or an independent medical examiner.
Our team of experienced personal injury lawyers at Cohen & Riechelson has conducted countless depositions of experts, and we are adept at defending clients against such accusations. Contact our team today to ensure that you present a strong and persuasive case that is well-supported with evidence. You can reach us anytime at 609-528-2596 to go over your rights and options. We assist clients with mitigating damages and defending against accusations that they failed to do so in Mount Laurel, Trenton, West Windsor, Pennington, Hamilton, and elsewhere in Mercer County, Middlesex County, Burlington County, and throughout New Jersey.
