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The Supreme Court's Mitigation of the Failure-To-Mitigate Damages Defense

Stanley, Lande & Hunter 2001

Relevant expert testimony and specific factual evidence will now be required prior to submitting a failure-to-mitigate defense to a jury.

In December 1995, Mitchell's vehicle left the street and careened onto the sidewalk, allegedly hitting Greenwood and injuring his right shoulder as Greenwood dove out of the path of the oncoming vehicle. Six months later, in May 1996, Greenwood underwent shoulder surgery and started a lengthy therapy process. Upon the recommendation of his orthopedist, Greenwood began seeing a physical therapist who instructed Greenwood to engage in some specific home exercises. However, the therapist did not specifically instruct Greenwood when to cease the home therapy.

Greenwood filed suit in December 1997. As late as August 1998, Greenwood's family physician noted that pain and stiffness remained in Greenwood's right shoulder. In February 1999, the case was tried. Mitchell admitted fault for the accident but denied actually colliding with Greenwood or that the accident was the proximate cause of Greenwood' injuries. Instead Mitchell argued that Greenwood failed to follow his home physical therapy regimen and therefore failed to mitigate his damages.

The primary focus of the failure-to-mitigate damages defense was Greenwood's own admission that he was not consistent in following the home physical therapy regime and that he quit doing it when he felt like it wasn't doing any good. The jury agreed with Mitchell's argument, assessing Greenwood with 60 percent fault for failing to mitigate his damages. The District Court entered judgment on the verdict in favor of Mitchell, which the Court of Appeals affirmed.

The Supreme Court however did not agree with the lower court's affirmation and ordered a new trial. In the process, the Court overruled prior cases and generated the new legal and factual architecture a defendant must assemble in order to submit a jury instruction on a failure-to-mitigate damages defense.

The Court held, in order to submit a failure-to-mitigate damages defense to the jury, the defendant has the burden of introducing substantial evidence that proves:

  • The plaintiff could do something to mitigate his damages;
  • Requiring the plaintiff to do so was reasonable under the circumstances; and
  • The plaintiff acted unreasonably in failing to undertake the mitigating activity.

The Court went on to state that the standard of proof for this defense is no less exacting than the plaintiff's burden to prove the defendant caused the plaintiff's damages. Hence, expert medical testimony will be necessary to prove a causal connection between the plaintiff's failure to mitigate and the plaintiff's damages.

In addition, and perhaps even more importantly (because, for all practical purposes, it completely denies a defense verdict based upon this defense), the Court went on to state the failure-to-mitigate defense does not necessarily apply to all of a plaintiff's damages. In fact, in most cases, the failure-to-mitigate defense will be limited to some portion of the plaintiff's damages. This is because the plaintiff's failure-to-mitigate starts only when the evidence supports its introduction into the timeline of relevant factual events.

In Greenwood's case the failure-to-mitigate damages defense has nothing to do with the damages he sustained during the first six months after the accident. Apparently Greenwood did all that he should have done with respect to his injuries and recovery during these first six months prior to his surgery. Therefore, his damages pertaining to this time period cannot be reduced by a failure-to-mitigate defense.

The Court stated that the practical concerns about applying the defense can be resolved by assessing each case individually and making use of separate verdict forms if warranted. In this case on retrial, separate verdict forms seemingly assure Greenwood of some recovery and, in all reality, bar Mitchell from an absolute defense. This is the likely scenario for most cases and should be considered when evaluating the particular settlement value of a case.


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