Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Mitigation of Damages.  

2006 Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 628 S.E.2d 330. 

Defendant is not required to plead mitigation of damages if the evidence justifies such an instruction. In this case, defendant did not plead mitigation and the evidence did not justify such an instruction. 

2005 Holley v. Pambianco, 270 Va. 180, 613 S.E.2d 425. 

In this medical malpractice action, the defense raised mitigation of damages as an issue. In that regard, the defense had a right to present evidence that the plaintiff had been warned of the danger of complications from the surgery, of the symptoms that would indicate complications, and of the need to make prompt report of such. If the plaintiff failed to comply with those instructions, that may be evidence of a failure to mitigate. In this case, a video tape that had been shown to the patient prior to the procedure was not relevant as to mitigation of damages since it contained no warning that a burden was being put on the patient to take any post operative steps. 

2004 National Hous. Bldg. Corp. v. Acordia of Va. Ins. Agency, Inc., 267 Va. 247, 591 S.E.2d 88. 

Usually, failure to mitigate damages is an affirmative defense and breaching party has burden to produce evidence. 

2004 Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64. 

Defendant sought to offer testimony through its defense medical examiner of malingering in form of the defense medical examiners opinion to that effect. The medical examiner, however, testified that his concerns are not sufficient that a formal diagnosis of malingering could be offered. Trial court properly struck this evidence. 

2002 Sawyer v. Comerci, 264 Va. 68, 563 S.E.2d 748. 

Medical malpractice action. Court instructed jury that if jury believed that plaintiff failed to use ordinary care to follow instructions of the doctor to make an appointment with his family physician, then his estate may not recover for any portion of the harm which, by such care, could have been avoided. This instruction was properly granted based upon the evidence. Plaintiff has duty to mitigate his damages. 

1989 Lee v. Bell, 237 Va. 626, 379 S.E.2d 464. 

Defendant has burden of proof as to mitigation of damages. If special benefit is conferred on plaintiff by defendant’s tortious act, this evidence may be considered by jury in mitigation of damages. In this property damage case, plaintiff presented proof of cost of repair. Defendant claimed betterment to plaintiff due to depreciation. Burden of proof on defendant to prove this. 

1983 Lawrence v. Wirth, 226 Va. 408, 309 S.E.2d 315. 

Medical malpractice case. It is well-established principle of tort law that to bar recovery, plaintiff’s negligence must concur with defendant’s. Here plaintiff’s alleged negligence followed that of defendant. Trial court’s instruction permitting jury to determine plaintiff’s contributory negligence was error. Her negligence, following her physician’s negligent treatment, may mitigate damages but it does not bar her recovery. 

1979 Armstead v. James, 220 Va. 171, 257 S.E.2d M 767. 

Evidence insufficient for jury to find that plaintiff failed to mitigate damages through failure to properly exercise and missing of one scheduled appointment. 

1972 Brown v. Huddleston, 213 Va. 146, 191 S.E.2d 234. 

Taxicab passenger claimed excessive special damages against driver. From evidence, jury was entitled to find injury not as serious as claimed and that only portion of special damages was reasonably related to accident. Under facts, not error to grant instruction on mitigation of damages. 

1953 Swersky v. Higgins, 194 Va. 983, 76 S.E.2d 200. 

Where defendant’s evidence showed that alleged corrective measure would only have temporary effect, defendant is not entitled to instruction based on that. 

1948 Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281. 

Injured party must use reasonable exertion and expense to minimize damages.