When people are hurt or injured due to the negligence of a third party in California, they can on occasion make their injuries worse with their own action or inaction. If the harm was due to another’s negligence or wrongdoing, a personal injury case through a competent personal injury attorney like the Law Office of Norman Gregory Fernandez may permit victims to recover compensation for their injury.
But when victims leave their injuries worse by not promptly seeking medical treatment, their compensation might be restricted.
The duty to mitigate damages in a personal injury case in California; the injured party has the obligation to mitigate damages. This usually means that an injured party has the responsibility to act reasonably to minimize the harm resulting from the injury.
If the court finds that the injured individual hasn’t mitigated their damages, it can cut the amount which the victim will have the ability to recover from the wrongdoer. It is necessary to keep in mind that the failure to mitigate damages doesn’t bar liability.
The negligent person is still responsible for the injury. The only thing that is affected is the sum for which the negligent party might be liable. Even if the defendant is 100 percent responsible for the injury, that doesn’t alleviate the sufferer from the duty to mitigate damages.
Failure to Mitigate
The failure to mitigate damages is an affirmative defense for a defendant in a California personal injury case. This means that to be able to have the damage amount reduced, the defendant has to show that it’s more probable than not that the victim failed to mitigate.
The court will then consider the reasonableness of the injured party’s efforts to mitigate, in light of the circumstances of the situation.
For example, the court will consider the victim’s capacity to make efforts or expenses without undue hardship. In the event the injured party did make reasonable efforts to avoid additional harm, he or she is going to be entitled to compensation for those expenses.
Frequent Situations
One common scenario where California personal injury victims often don’t mitigate their damages is in not promptly seeking medical treatment. An injured person should find reasonable medical care for any injuries that he or he has suffered. If a delay in seeking medical treatment exacerbates the harms and causes additional injury, or if delays in seeking treatment lead medical expenses to grow, the sufferer may not be able to recover the extra damages for the extra injury.
For instance, a pedestrian might endure a broken arm when she’s hit by a vehicle. If she delays getting the broken arm sat, and it then heals wrongly, resulting in her extended pain along with also the eventual medical bills to grow, she cannot recover for the gain in damages.
Many times, the failure to mitigate damages applies in the context of lost wages. Personal injury plaintiffs who are rendered unable to work could recover damages to compensate them for their lost wages. However, they really do have the obligation to make reasonable efforts to acquire gainful employment.
As an example, a personal injury victim may lose his job since he had been temporarily disabled and unable to work while they’re recovering. But when he recovers, he must try to obtain a new job. If he does not, his reimbursement for lost wages will be reduced by the sum that he could reasonably be expected to earn that time, if had made reasonable attempts to locate employment.
The duty to mitigate damages in California basically imputes on an injured party a requirement that they lessen their damages, or their damages are cut off from the time they failed to mitigate.
Another example is if you injured your back in a slip and fall. You might think it’s reasonable to sit and wait before you go to the doctor to see if the pain would go away on its own. But when the pain does not go away, and you do not see a doctor, a defendant is not liable for your extended pain-and-suffering or even your injuries, from the time you unreasonably failed to seek medical treatment.
There are many people these days that think that they can represent themselves in complex personal injury cases. Most of the time when these people call us after 6 to 8 months, they have already irreparably harmed their case by not mitigating damages.
It is extremely important if you get injured anywhere in the state of California, for a motor vehicle accident, slip and fall/trip and fall, or other type of injury due to the negligence or intentional acts of the third-party, for you to call us at The Law Office of Norman Gregory Fernandez immediately for free consultation at 800-816-1529, or contact us here on the website through the contact form.
The Fernandez Law firm will take care of all the legal aspects of your case, speak to the defendant on your behalf, and advise you on how to mitigate your damages to maximize compensation in your case. You are not going to learn this on your own through YouTube videos or Google. Practicing law is not as simple as watching do-it-yourself videos, if it was there would be no need for personal injury attorneys.
Do yourself a favor and make the call at 800-816-1529 we are hear from you.
By California personal injury lawyer Norman Gregory Fernandez, May 27, 2019
