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Mitigation Of Damages

On Behalf of | Jan 1, 2010 | Personal injury defense

Must a personal injury plaintiff mitigate damages by attending medical treatment appointments outside working hours in order not to incur damages for loss of time from work?

A personal injury plaintiff has a general duty to mitigate his/her damages. “The person injured by the wrongful act of another is bound…to exercise reasonable care and diligence to avoid loss or minimize the resulting damages and cannot recover for losses which might have been prevented by reasonable efforts and expenditures on his part.” Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840, 844. “A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion.” Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 citing Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69. However, “The duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable.” Valencia 23 Cal.2d at 846. “The rule of mitigation of damages has no application where its effect would be to require the innocent party to sacrifice and surrender important and valuable rights.” Valle de Oro 26 Cal.App.4th at 1691 citing Seaboard Music Co. v. Germano (1972) 24 Cal.App.3d 618, 623.

The court in Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 346 stated “The correct rule is that an injured person must use reasonable diligence in caring for his injuries. What is reasonable diligence depends on all the facts and circumstances of each case.” “The doctrine [of mitigation] does not require the injured party to take measures which are unreasonable or impractical or which would involve expenditures disproportionate to the loss sought to be avoided or which may be beyond his financial means.” Green v. Smith (1968) 261 Cal.App.2d 392, 396.

Despite plaintiff having the duty to mitigate, the burden of proving the extent to which the damages could have been mitigated lies with defendant.

It is true that plaintiff is in duty bound to minimize his damage in any way that he reasonably can, and if he negligently refuses to do so he cannot recover for that which he might have prevented. It is for appellant to establish that the steps taken by plaintiff to so minimize his loss or damage falls short of the obligation so fixed. In other words, the burden is on the defendant to establish matters asserted by him in mitigation or reduction of the amount of plaintiff’s damage.

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