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The duty to mitigate damages is something most residents of Delaware have never heard of. That is, unless you’ve had to file an auto accident lawsuit in Delaware. The duty to mitigate damages often comes into play in these cases because it is often raised as a defense by the at-fault party. Defendants often claim that the plaintiff (injured party) in an auto accident case failed to mitigate their damages.

What is the Duty to Mitigate Damages?

Under Delaware law, every party who alleges injury caused by another party has a duty to reduce the actual damages that occur. In an auto accident case, this means that the plaintiff (person injured in the auto accident) must take reasonable care to reduce the harm that results from the injuries. In most cases, attorneys representing defendants will take a close look at the plaintiff’s medical treatment. A plaintiff’s medical records often become one of the most important pieces of evidence. Therefore, failure to undergo or complete treatment or failure to follow a doctor’s orders can wreak havoc on a plaintiff’s case. Below are two examples which discuss a plaintiff’s duty to mitigate damages and how the failure to do so can directly affect the outcome of the case.

Related: Joint & Several Liability in Delaware Auto Accident Cases – The Current Status of the Law

Example 1. Failure to Mitigate Financial Losses

A Delaware resident is involved in a serious car accident which results in major damage to their car. It is towed to a local lot while the insurance company investigates liability. The lot charges $50.00 per day in storage fees. Finally, two weeks later the car is deemed a total loss. The insurance company accepts liability and asks for permission to tow the car to another storage lot. However, the owner of the car does not agree with the amount being offered for the vehicle, i.e., the fair market value of the car just prior to the accident, and refuses to allow the car to be towed from the lot. Several weeks go by and finally, the owner accepts the insurance company’s valuation. In the mean time, the owner does nothing to remove the car from the lot and ends up with a large storage fee.

In this instance, there is a fair argument that the owner failed to mitigate the financial losses stemming from storage of the car after the accident. The defendant will argue it is not liable for any storage fees incurred after the insurance company offered to tow the car to another lot. The financial recovery for the storage fee is likely to be limited.

Example 2. Failure to Undergo or Complete Medical Treatment

A pedestrian in Wilmington is injured while crossing the street and suffers serious injuries, including a major tibial plateau fracture of the knee which requires surgery and placement of several screws and a metal plate. The recovery process is a lengthy one, involving months of physical therapy and a second surgery to remove some of the hardware. After the physical therapy is complete and months after the second surgery, the patient still experiences significant pain and limited range of motion in the knee. The doctor offers a series of steroid injections into the knee joint, which the patient declines. The patient does not seek any further medical treatment and instead relies on over the counter pain relievers.

Here, the patient declined steroid injections, which are reasonable medical procedures involving minimal risk. The defense would argue that any pain and suffering after this point is the result of the plaintiff’s failure to mitigate damages. In other words, had the plaintiff received the steroid injections, the knee pain would have been alleviated. The plaintiff’s long-term or future pain and suffering damages claim may be limited unless there is a valid explanation for declining the injections or a medical opinion that the injections wouldn’t have made a difference.

Injured in a Car Accident in Wilmington, Newark or Dover?

If you’ve been injured in a car, truck or pedestrian accident in Delaware, contact our auto injury lawyers for a free consultation. Our lawyers have been handling auto injury, PIP and insurance claims for over 30 years, and our firm has offices in Wilmington, Newark and Dover. (302) 658-1717

*Disclaimer: This website page does not provide any legal advice or create any attorney-client relationship. Every case is unique and you should not take any action or make decisions in your case without speaking to a qualified car and truck accident lawyer in Delaware. Any discussion of results is no guarantee of the same or similar results in current or future cases.

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