Date: Sat, 22 Sep 2007 00:35

From: Lewis Klar

Subject: Mitigation and Contributory Negligence

Here is my last and final comment on this topic (ok ... maybe not). It struck me at 3:00 am so it might be wonky. I was thinking about the plaintiff's failure to agree to reasonable treatment for his/her injury and whether this should be a failure to mitigate issue. Those who commented think it should be a failure to mitigate issue; and intuitively that sounds correct.

But can we not distinguish between the plaintiff's failure to mitigate his losses by not seeking medical attention and the plaintiff's failure to minimize his injury by not seeking medical attention? Again the difference between loss and injury is at the heart of this.

A failure to mitigate losses as a result of the unreasonable refusal to accept medical care would be for example extending your inability to return to work because you refuse medicine which would allow you to be pain free and hence able to work. In other words the impact of the injury on your life is more serious because of your failure to mitigate. But the injury itself is not worsened.

A failure to minimize the injury would be refusing medical treatment for a simple cold, getting pneumonia and dying. Not only would the losses be more extreme, but the injury (death) is of course different and more extreme. This to my mind is an apportionment (e.g. contributory negligence issue).

Ok, enough. No more from me. Yom Kippur is upon me and I will apologize to the appropriate party tomorrow for taking up your time.

Lewis

>>> David Cheifetz 09/21/07 7:00 AM >>>

The duty to mitigate also involves a moral concept. If contributory fault and the duty to mitigate are based on the same moral concept, or even the same factual causation concept, then they are the same doctrine expressed in different ways for different purposes. In that case, a rose is a rose, not because the consequences are the same but because the concepts are the same; just the labels are different.

It's not the same as equating contract and tort because those areas are definitionally different. Your analogy would work only if we defined tort and contract to be the same because the consequences are the same. That would amount to at least mistaking a consequence (an aspect) of the thing for the thing itself.

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