Date: Sat, 22 Sep 2007 14:11

From: David Cheifetz

Subject: Mitigation and Contributory Negligence

Underlying all of this, I think, is the normative question of whether the plaintiff should be required to bear all, some, or none of the financial consequences of the plaintiff's conduct, in the sense that that conduct may result in an award of money which is less than would have been the case if the plaintiff had acted differently. It is more important than ever to not be doctrinaire about which of those choices is the better normative conclusion for different fact situations where a regime of law permits the plaintiff to succeed against a defendant on the basis of (A) strict liability absent fault or (B) fault plus possibility less than probability which possibility is somehow related to increased risk.

David

-----Original Message-----
From: Lewis KLAR
Sent: September 21, 2007 7:36 PM
Subject: RE: ODG: 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.

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