Unreasonable Failure to Mitigate Damages: The Defense of Last Resort

When people are injured through no fault of their own, a cascade of consequences flow from the injury.  Innocent victims may soon discover that in addition to the pain and disability of injury, they experience wage loss or loss of employment, delay in the administration and adjustment of their claim, impact on their credit from unpaid medical bills, and the frustration of a wrong-doer who will not accept responsibility for the harm caused.  One thing that injured individuals may not expect to have to face is increasingly a part of modern litigation: the claim that they, the injured parties, have themselves “failed to mitigate their own damages.”  In other words, the victim unreasonably prolonged their pain and disability or made them worse than they would have been had reasonable treatment been timely sought.

            Obviously, one of the first things that any person who is injured naturally tries to do is to recover from the trauma and regain their full measure of physical and mental well-being.  It is hard to wrap one’s mind around the idea that the wrongdoer can try to escape responsibility by shifting blame for the injury to the innocent victim, himself or herself.  Yet, this is exactly what can occur if the “mitigation defense” prevails.  The defendant will claim that the innocent victim failed to act reasonably in trying to get better.  The defendant may point to a failure to seek timely treatment, gaps in treatment (time periods where no treatment was sought), failure to follow medical recommendations, or failure to pursue the “right” kind of treatment.  The defendant will claim that had the victim acted “reasonably,” the injuries would have healed faster or more completely, without prolonged or ongoing pain and disability.  This is maddening, to say the least.  It is as though an arsonist is blaming the homeowner for not putting out the fire fast enough!  [But not quite! See below!]

            This defense is not without its merits.  Failing to pursue medical care or to heed the advice of medical providers can make untreated or improperly treated conditions worse.  Should this exacerbation of the underlying condition be laid against the responsibility of the wrongdoer?  The law places limits on this sort of defense and, as you might well imagine, the “unreasonable failure to mitigate” defense depends upon the facts and circumstances of each case.  It is, as lawyers will often say, very “fact-sensitive.”  It may be helpful, however, to examine the rulings of Washington State courts to understand the contours of this valid, but much overused, defense.

            The Burden of Proving the Defense is on the Party Asserting It.

“The doctrine of avoidable consequences, also known as mitigation of damages, prevents recovery for damages the injured party could have avoided through reasonable efforts.” Cobb v. Snohomish County, 86 Wash. App. 223, 230, 935 P.2d 1384 (1997) (citing Kloss v. Honeywell, Inc., 77 Wash. App. 294, 301, 890 P.2d 480 (1995)). Where the plaintiff claims lost wages, such damages are “not recoverable to the extent plaintiff reasonably failed to mitigate his damages by earning whatever he could at another occupation.” Kubista v. Romaine, 87 Wash.2d 62, 67, 549 P.2d 491 (1976). The burden of proving a failure to mitigate is on the party who caused the damages. Cobb, 86 Wash. App. at 230, 935 P.2d 1384 (citing Bernsen v. Big Bend Elec. Coop., 68 Wash.App. 427, 435, 842 P.2d 1047 (1993)).

            The Unreasonable Failure to Mitigate Must be Affirmatively Pleaded and the Party Pleading the Defense has the Burden of Proof.

“Unreasonable failure to mitigate” is an affirmative defense which must be affirmatively pleaded by the party asserting it under CR 8(c), which means that the defendant should plead such a defense in its pleadings (i.e. answer to the complaint):

Failure to mitigate damages is an affirmative defense under CR 8(c). Generally, affirmative defenses are waived unless they are (1) affirmatively pleaded, (2) asserted in a motion under CR 12(b), or (3) tried by the express or implied consent of the parties. Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976); Ebling v. Gove’s Cove Inc., 34 Wash. App. 495, 500, 663 P.2d 132, review denied, 100 Wash.2d 1005 (1983); Rainier Nat’l Bank v. Lewis, 30 Wash. App. 419, 422, 635 P.2d 153 (1981).

Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wash. App. 427, 433-434, 842 P.2d 1047 (1993).  The party asserting an unreasonable failure to mitigate bears the burden of proof. Young v. Whidbey Island Bd. of Realtors, 96 Wash.2d 729, 734, 638 P.2d 1235 (1982).

            Mere Failure to Pursue Treatments that “Might” Prove Beneficial is Not “Unreasonable Failure to Mitigate.”

              Respecting the assertion of the affirmative defense of unreasonable failure to mitigate, “A mere possibility of benefit is insufficient.” Cox v. Keg Restaurants U.S., Inc.,  86 Wash.App. 239, 245, 935 P.2d 1377 (1997)(failure to have shunt removed, take antidepressants, begin physical therapy, seeking speech therapy, seek therapy, all speculative.)  Where a condition, such as tinnitus (ringing in the ears) is not susceptible of cure and treatment consists of a number of reasonable possibilities which each affords a “chance” for relief, failure to pursue one possibility is not unreasonable.

              In Hawkins v. Marshall, 92 Wn. App. 38, 962 P.2d 834 (1998), although there was evidence the plaintiff had failed to follow her doctor’s advice, there was no evidence presented that this omission aggravated her condition or delayed her recovery.  Accordingly, it was held not be error to refuse to give the failure to mitigate instruction.

A defendant requesting a failure to mitigate instruction must show that there were alternative treatment options available to the plaintiff and that the plaintiff acted unreasonably in deciding on treatment. Hogland v. Klein, 49 Wash.2d 216, 221, 298 P.2d 1099 (1956). Because the defendant caused the injury, however, it is the defendant’s burden to show that the plaintiff acted unreasonably. Hawkins v. Marshall, 92 Wash.App. 38, 47, 962 P.2d 834 (1998).

As one might expect, the law does not require a person who was injured by the wrong of another to do anything more than act “reasonably” in dealing with the injury.  In this regard, the courts will defer to reasonable choices made by the injured person:

“A wide latitude of discretion must be allowed to the person who by another’s wrong has been forced into a predicament where he is faced with a probability of injury or loss. Only the conduct of a reasonable man is required of him. If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather that the other is chosen.Hogland, 49 Wash.2d at 221, 298 P.2d 1099 (quoting Charles T. McCormick Handbook on the Law of Damages § 35, at 133 (1935)).

Fox v. Evans, 127 Wash.App. 300, 304-05, 111 P.3d 267, 269 (2005); Jaeger v. Cleaver  Constr., Inc. 148 Wash.App. 698, 714-715, 201 P.3d 1028 (2009).

No Failure to Mitigate Defense Exists in Cases of Intentional/Reckless Conduct.

            We started this discussion with the notion that an arsonist could blame a homeowner for not putting out the fire quickly enough.  Well, not so.  Although a negligent driver who rear-ends you can claim that you did not reasonably pursue medical care and, thus, unreasonably failed to mitigate damages, a person whose conduct is intentional (like an arsonist) or even reckless (but not merely negligent) cannot raise the failure to mitigate defense.

“[T]here is no duty to mitigate damages arising from intentional conduct. See Wilson v. City of Walla Walla, 12 Wash.App. 152, 153, 528 P.2d 1006 (1974). ….The exception to the doctrine applies only when the tortfeasor “intended the harm or was aware of it and was recklessly disregardful of it….” Restatement (Second) of Torts § 918(2) (1965) (emphasis added)(cited with approval in Young, 96 Wash.2d at 732, 638 P.2d 1235).

Cobb v. Snohomish Cnty., 86 Wash. App. 223, 232, 935 P.2d 1384, 1390 (1997).

A party injury [injured] [sic] by conduct that is either intentional or reckless is entitled to compensatory damages and is under no duty to mitigate such damages. Desimone v. Mutual Materials Co., 23 Wash.2d 876, 162 P.2d 808 (1945); Champa v. Washington Compressed Gas Co., 146 Wash. 190, 262 P. 228 (1972); Theis v. Federal Finance Co., 4 Wash.App. 146, 480 P.2d 244 (1971).

Wilson v. City of Walla Walla, 12 Wash. App. 152, 153-54, 528 P.2d 1006 (1974).

            An innocent victim of personal injury has a duty not to unreasonably fail to mitigate damages, which is to say, to avoid the consequences of injury that can reasonably be avoided.  A person cannot, however unlikely this may be, exacerbate their own losses just to increase the burden on the wrongdoer.  While it is important that an injured person be reasonable in their post-injury conduct, they are not required to undergo every possible treatment that might afford some benefit.  Sound medical judgments are left to the injured person, after consultation with their physician.  A physician can advise you to have a surgery, but, in doing so, they will list the risks and the benefits.  It is not unreasonable for a person to, after considering the choices available to them, make an informed decision.   No matter what you decide, such a decision is likely to be respected.

            The unreasonable failure to mitigate defense is weakened by the fact that it is, at base, an attempt by the wrongdoer to shift the fault for the injury caused by the wrong back upon the innocent victim.  It is overused.  Nonetheless, it is an increasingly prominent feature in the landscape of modern litigation.  An injured person would be well-advised to run decisions to forgo treatment, delay treatment, or pursue treatment through the filter of what a “reasonable” person would do under the circumstances.


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>