It is well-settled in Louisiana jurisprudence that an injured party has a duty to mitigate damages. In other words, a victim is required to make reasonable efforts to minimize the extent of injury or damage that results from a tortfeasor’s actions, even though the actions may be negligent or wrongful. The idea is that a plaintiff cannot just “sit idly by” while his situation becomes worse if there is something he could do to stop or lessen the damage. A plaintiff, however, is not required to make extraordinary efforts or to do what is unreasonable or impractical to minimize the damages. Instead, the efforts need only pass the test of being consistent with common sense.
For a defendant to invoke the defense of the plaintiff’s failure to mitigate damages, the defendant must meet the burden of showing that: (1) the plaintiff’s conduct after the injury was unreasonable; and (2) that the plaintiff’s unreasonable conduct resulted in the aggravation the his harm. In light of the standard of reasonableness on the part of the plaintiff’s duty to mitigate, this is not a simple burden for a defendant to carry. The recent case of Britt v. City of Shreveport offers a look at the Second Circuit Court of Appeal’s treatment of this issue. On August 5, 2003, Carolyn Britt was driving her Chevy Astro van on Thornhill Street in Shreveport. The street was partially blocked by a crew of City employees that was trimming a roadside tree. One of the employees signaled to Britt to proceed through the area. As she drove through, a tree massive limb fell and landed on top of her vehicle. Britt suffered multiple injuries to her head, neck, shoulders, lower back, and legs, but did not immediately go to the hospital. Instead, she called her daughter to pick her up from the scene.
More than a week later, Britt sought treatment from a chiropractor who saw her over the course of the next six months. Although her condition improved, Britt continued to experience back pain, so the chiropractor referred her for an MRI. Britt refused the MRI but instead over the next year serially consulted four physicians whose recommendations she routinely ignored. After being told by the last physician that she was not a candidate for surgery, Britt visited a neurosurgeon in November of 2004. The neurosurgeon recommended surgery to correct her back problems. Britt then was examined by a physical therapist who suggested a physical therapy rehabilitation program to follow the surgery. Britt never underwent the surgery or enrolled in the therapy program. Instead, she filed a petition against the City of Shreveport to recover damages resulting from personal injuries, including pain and suffering, medical expenses, lost wages, loss of earning capacity, and loss of enjoyment in life. The City did not dispute its fault in the accident, so following a trial on the quantum of damages the court awarded Britt $371,963.96 in general and special damages. This amount included an unspecified reduction based on Britt’s failure to seek and follow proper medical treatment following the accident. The City appealed, arguing that the trial court’s award did not accuratly reflect that, had Britt submitted to the recommended treatments and physical therapy regimen, she would have substantially increased her chances of not needing surgery at all. In addition, the City argued that the trial court erred in determining that Britt was justified in refusing to undergo surgery because she would have been required to pay for the procedure out of her own pocket.
The court, mindful of the requirement for a plaintiff to mitigate damages, noted that a plaintiff’s “recovery will not be limited because of a refusal to undergo medical treatment that holds little promise for successful recovery.” Jacobs v. New Orleans Public Service. The court explained, “the expense and inconvenience of treatment are also proper considerations in determining the reasonableness of a person’s refusal to submit to treatment.” The court noted that the trial court properly considered Britt’s lack of financial means to pay for the recommended physical therapy or surgery, the latter totaling an estimated $50,000. Nevertheless, the trial court found that without the surgery, Britt would never recover from her injuries, and so the failure to undertake the surgery was contrary to Britt’s duty to make reasonable efforts to mitigate damages. This was reflected in the amount of damages awarded Britt by the trial court. The Second Circuit found no abuse of discretion on the part of the trial court in this decision, and affirmed its award of damages.
The Britt case shows the value of consulting an attorney as soon as possible following an accident. Given the duty for an injured plaintiff to mitigate damages, it is prudent to discuss possible treatment options with a lawyer as part of the process of deciding the best course of action to take. As this case demonstrates, a plaintiff’s damages award will be reduced if the court finds this duty has not been met.
If you have been injured in an accident, call the Berniard Law Firm right away at 504-521-6000 and speak with a lawyer who can help you find the best path to recovery.