Mitigation of Damages in Georgia Personal Injury Cases

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Georgia law looks at an injured person’s own conduct after the defendant’s negligence through a duty to mitigate and a rule on avoidable consequences. The first requires ordinary care and diligence to limit the damages. The second bars recovery where the plaintiff, by ordinary care, could have avoided the consequences of the defendant’s negligence. They are worded differently, and the Court of Appeals has applied each.

The Duty to Mitigate

“When a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence. However, this duty to mitigate does not apply in cases of positive and continuous torts” (OCGA 51-12-11). The duty is measured by “ordinary care and diligence” and reaches only what “is practicable,” and the statute sets aside “positive and continuous torts” without defining the phrase.

Medical Care After the Injury

The duty to mitigate reaches how an injured person follows medical advice. In North Fulton Community Charities, Inc. v. Goodstein, 367 Ga. App. 576 (2023), the Court of Appeals summarized its earlier cases: a jury charge on the duty to mitigate is authorized “where a plaintiff fails to follow his or her doctor’s instructions, stops treatment contrary to medical advice, or fails to obtain available treatments recommended by a treating physician,” and a charge is also justified where there is evidence that failing to follow a doctor’s advice may have aggravated the condition. The injured visitor in Goodstein had suffered a head injury in a fall, declined an ambulance, went home, and was later found unconscious with a subdural hematoma. Under the particular facts of that case, the court declined to hold that an injured person who did not recognize how serious the injury was had an affirmative duty to mitigate by seeking treatment, and it affirmed summary judgment for the plaintiff on the mitigation defense.

Avoidable Consequences

“If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover” (OCGA 51-11-7). Where it applies, this statute states a complete result: no recovery.

In Reed v. Carolina Casualty Insurance Co., 327 Ga. App. 130 (2014), a wrongful death action, the defendants argued on reconsideration that the decedent could have avoided the consequences of an illegally parked tractor-trailer. The Court of Appeals wrote that “[t]here is no evidence, however that Reed was or should have been aware of the fact that a tractor-trailer was illegally parked in the emergency lane of an interstate entrance ramp such that he could have avoided the consequences,” and concluded that “this argument does not provide grounds for summary judgment.” Reed concerned a collision, not a decision about medical care after an injury.

Frequently Asked Questions

Who must prove that the plaintiff could have avoided the consequences?
The defendant. Reed states: “The defendant has the burden of proving that the plaintiff by ordinary care could have avoided the consequences caused by the defendant’s negligence.”

Does a judge or a jury decide the question?
A jury, unless the case is clear. Reed, citing McCray v. FedEx Ground Package System, 291 Ga. App. 317, 322 (2008), treats it as a jury question except in “palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached.”

Does any contribution by the plaintiff end the claim?
No. OCGA 51-11-7 continues: “In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”

  • OCGA 51-12-11; OCGA 51-11-7
  • North Fulton Community Charities, Inc. v. Goodstein, 367 Ga. App. 576 (2023)
  • Reed v. Carolina Casualty Insurance Co., 327 Ga. App. 130 (2014), citing McCray v. FedEx Ground Package System, 291 Ga. App. 317 (2008)

Disclaimer

This article provides general information about the Georgia statutes on mitigation of damages and avoidable consequences. It is not legal advice and does not create an attorney-client relationship. Whether either statute limits a particular recovery depends on the facts. Anyone with a question about treatment or work after an injury should consult a licensed Georgia attorney promptly about the particular situation.

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