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22.4 Damages – Mitigation of Damages (Personal Injury)

Mitigation of Damages – Personal Injury

An injured party must exercise reasonable care to reduce the damages resulting from the injury.  If you find that [plaintiff’s name] failed to undergo reasonable medical treatment to reduce [his/her] damages, [__or that [he/she] failed to follow reasonable medical advice__], then any damages resulting from that failure are not the responsibility of [defendant’s name] and should not be included in your award.

Source:

Lynch v. Vickers Energy Corp., Del. Supr., 429 A.2d 497, 504 (1981)(proper measure of injured party’s mitigation of damages depends upon circumstances of the case); Gulf Oil Co. v. Slattery, Del. Supr., 172 A.2d 266, 270 (1961)(duty of person injured in tort to take all reasonable steps to minimize damages); American General Corp. v. Continental Airlines, Del. Ch., 622 A.2d 1, 11, aff’d, Del. Supr., 620 A.2d 856 (1992)(general duty to mitigate damages does not require injured party to take unreasonable or speculative steps to meet that duty); MacArtor v. Graylyn Crest III Swim Club, Inc., Del. Ch., 187 A.2d 417, 421 (1963)(refusal of injured party to accept alternative compensation offered by defendant precludes recovery of damages).

Coleman v. Garrison, Del. Super., 281 A.2d 616, 619 (1971)(duty of injured party to mitigate financial consequences of defendant’s negligence), appeal dismissed, Wilmington Medical Ctr., Inc. v. Coleman, Del. Supr., 298 A.2d 320 (1972), conformed to, Del. Super., 327 A.2d 757, 761 (1974)(speculative damages not allowed), aff’d, Del. Supr., 349 A.2d 8 (1975); Meding v. Robinson, Del Super., 157 A.2d 254, 257 (1959)(refusal of injured party to continue medical treatment after certain point in time precluded recovery of damages for pain and suffering after treatment terminated), aff’d, Del. Supr., 163 A.2d 272 (1960).

Credit: Delaware Superior Court