Mitigation of damages is a contract law concept requiring a victim in a contract dispute to minimize the damages resulting from a breach of the contract. In other terms, it means that the victim is legally obligated to act in a manner that will mitigate both the effects of the breach and their losses, and even if the victim who suffers emotional injury through no fault of their own should take reasonable steps to avoid further loss, and to minimize the consequences of the injury. As such, the mitigation of damages law is outlined in the Texas Civil Practice & Remedies Code – Section §147.123, which provides:
Mitigation of Damages
(a) In an action to which Chapter 33 (Proportionate Responsibility) applies, the Court shall instruct the finder of fact regarding the determination of responsibility according to Section §33.003 (Determination of Percentage of Responsibility) using the appropriate approved pattern jury charge, which the Court may modify as appropriate to the circumstances.
(b) In all actions not governed by Subsection (a), the Court shall instruct the finder of fact regarding a claimant’s duty to mitigate or avoid damages in a manner appropriate to the action using the appropriate approved pattern jury charge, which the Court may modify as appropriate to the circumstances.
In other words, the Code allows the finder of facts and the jury to decide whether a person took the necessary steps to avoid increasing damages or “mitigate” their damages. Under Texas law, whether a person took the steps required to avoid increasing damages or “mitigate” their injuries would be grounds for recovery and denial.
The Court of Appeals of Texas, Second District, in Fort Worth stated in Cotton that “The mitigation of damages doctrine requires the injured party to exercise reasonable care to minimize its damages if damages can be avoided with the only slight expense and reasonable effort. The party asserting failure to mitigate has the burden of proving facts showing a lack of mitigation. It must also show the amount by which the damages were increased by failure to mitigate.” Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex. App. 2006). Further, the Court held in Cotton that the party asserting affirmative defense must request findings in support thereof to avoid waiver.
If you have any questions about Personal Injury Claims or Mitigation, call Houston Injury Lawyers, PLLC, our firm focuses the entirety of our time and expertise on representing those who have suffered a personal injury and helping our clients through the entire recovery process – physical, emotional, and financial recovery – from their injuries. We allow our clients to tip the balance of justice into their favor through our years of experience and devotion to our clients. Our care and preparation are core principles and keys to our success. The lawyers at Houston Injury Lawyers, PLLC, can help you navigate this issue and answer any questions that you may have. If you would like to speak to someone about your situation or for a free and confidential consultation, call our office at (713) 366-HURT (4878) today or visit us online at www.houinjurylawyers.com.