Question: Are plaintiffs required to mitigated their damages?
Mitigation of damages addresses conduct by an injured party that aggravates or increases that party’s injuries. Indiana Courts have made it clear that mitigation of damages is not an affirmative defense to liability. Rather, failure to mitigate damages is an affirmative defense that may reduce the amount of damages a plaintiff is entitled to recover after liability has been found. Put simply, a plaintiff in a negligence action has a duty to mitigate their post-injury damages, and the amount of damages a plaintiff is entitled to recover is reduced by those damages which reasonable care would have prevented. Defendants bear the burden to prove that a plaintiff has not used reasonable diligence to mitigate damages. Defendant must prove that plaintiff’s unreasonable post-injury conduct has increased plaintiff’s harm, and if so, by how much. Defendants bear the same burden with respect to this defense that the plaintiff bears with respect to the claim for damages.
Defendants must establish identifiable quantifiable additional injury, just as plaintiff must prove harm resulting from defendant. When defendant claims that a plaintiff unreasonably failed to follow medical advice, in order to establish a failure to mitigate, defendant must also prove that plaintiff’s actions caused plaintiff to suffer a discrete, identifiable harm arising from that failure, and not arising from defendant’s acts alone.