The doctrine of avoidable consequences, sometimes referred to as the “duty to mitigate,” is an affirmative defense that can be raised by defendants in personal injury cases to argue the plaintiff was partially or fully responsible due to failure to exercise reasonable care to reduce the injury or damages suffered.
Sometimes, the doctrine of avoidable consequences is confused with the doctrine of comparative negligence. Both are issues raised by the defense, the main difference is while comparative negligence involves the allowance of a court finding that numerous parties contributed to the initial injury and therefore share liability damages, the avoidable consequences doctrine asserts plaintiff had a duty to prevent further injury after the the initial legal wrong occurred.
Plaintiffs must pay attention to this because it can substantially reduce damages (compensation you are owed) following a personal injury.
There was a tort action recently stemming from an Orange County tort doctrine for flood damages wherein this doctrine was raised. Although it wasn’t a personal injury lawsuit, the same principal applies to injury cases in terms of damages.
According to court records with Florida’s Fifth District Court of Appeal, this was a case wherein Orange County sued a lease company that leased certain property at the Orange County Convention Center for a trade show, for which it agreed to take responsibility for any damage caused on the property by its employees, agents or guests during the lease term. The lessee secured and sponsored exhibitors for the trade shows. One exhibitor informed the lease holder it wanted to perform a flame effect demonstration, and was required to conduct a pre-show test before it was allowed to do the flame test for the general public. During this demonstration, the fire safety sprinklers (owned by the county) activated, resulting in extensive water damage to the property.
The county sued the leasing company for the damage. The leasing company, however, raised the affirmative defense that the county either created or enhanced the damage by failing to shut down or disengage the sprinkler system as soon as reasonably possible. In raising this doctrine of avoidable consequences, the defense argues the plaintiff is prevented from recovering damages inflicted by wrongdoer that the injured party reasonably could have avoided. Plaintiff is only responsible for the damages it could have avoided it had it exercised ordinary and reasonable care.
In this case, the county, as the party moving for summary judgment on the issue of liability, has the burden of proving there was no genuine issue of material fact about its entitlement to summary judgment as a matter of law. The trial court had granted the county’s motion for summary judgment, but the appellate court reversed in part. The reversal pertained to the county’s failure to conclusively refute defendant’s affirmative defense of the avoidable consequences doctrine. Specifically, had county workers (there were five firefighters present at the time of the flame test) failed to exercise ordinary and reasonable care in disconnecting the sprinkler system. It was defendant’s contention that had they done so, the water damage incurred by the county could have been avoided.
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PENTON BUSINESS MEDIA HOLDINGS, LLC f/k/a Prism Business Media, Inc., v. ORANGE COUNTY, Jan. 26, 2018, Florida’s Fifth District Court of Appeal
More Blog Entries:
Open and Obvious Defense in Florida Premises Liability Injury Lawsuits, Feb. 10, 2018, Orlando Personal Injury Lawyer Blog