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Accident Victims Are Required to Mitigate Damages Under California Law

Posted on in Personal Injury

California accident attorney, California injury lawyerIf you are an accident victim, you should not have to pay for your medical treatment and lost wages. You should also be compensated for the pain and suffering you experience. However, some personal injury victims believe that because they were injured they are entitled to an unlimited amount of damages. This is not the case. California law imposes duties on accident victims, and failure to fulfill these duties could be used against you in court or by an insurance adjustor. This holds true for all victims whether you were injured in a car wreck, slip and fall, or any other accident where you believe another party to be at fault. Speaking to an attorney about what steps the law will require you to take is a good way to be sure that you are meeting your duties as an accident victim.

The Duty to Mitigate Damages

The law requires that accident victims take “reasonable” steps to mitigate damages. An accident victim cannot recover for losses that could have been avoided by taking ordinary care and “reasonable exertion.” [Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.]

What is “reasonable” and what care is “ordinary” will vary from case to case, and an attorney will be able to make specific recommendations. The law states that this duty to mitigate does not require an accident victim to take “unreasonable or impracticable” steps to reduce damages. An accident victim, which is an innocent party, does not have to “sacrifice and surrender important and valuable rights.”

Examples of Duty to Mitigate

  • Failure to follow doctor’s orders. If you do not adhere to your treatment plan, it could be argued that you have inflicted additional health problems on yourself;
  • Failure to make car repairs. If you do not quickly get your car repaired, additional work could be required; and
  • Failure to return to work when able. It could be argued that even with your injuries you could return to work in a part-time capacity or in a different role.

The Defense Will Argue that a Victim Did Not Mitigate Damages

The insurance company or person believed to be at fault will investigate whether you fulfilled your duty to mitigate. If they can convince a judge or jury that you did not take reasonable steps to prevent further damages, your damage award will be reduced. This is a common defense tactic.

Contact a San Jose, CA Personal Injury Attorney

Call 408-246-5500 to speak with the skilled San Jose personal injury lawyers at the Jachimowicz Law Group. Our firm offers free consultations to accident victims. We accept cases on contingency fee basis, which means our attorney’s fees do not get paid unless you recover a settlement or judgment.

 

Source:

http://www.courts.ca.gov/partners/documents/2011_Edition.pdf

 

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