Georgia Code|§ 51-12-11. Mitigation of Damages Required; Exception

                                                
 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. 
 
 (Civil Code 1895, § 3802; Civil Code 1910, § 4398; Code 1933, § 105-2014.) 
  Law reviews.  
 - For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). 
 
 JUDICIAL DECISIONS 
 
 Failure to seek medical treatment. 
 
 - By refusing to go to a hospital when the plaintiff was injured, the plaintiff failed to exercise the proper care to obtain treatment as it was the plaintiff's duty to do, and thus lessen the plaintiff's damages for pain and suffering. Rosenthal v. O'Neal, 108 Ga. App. 54, 132 S.E.2d 150 (1963). 
  Obligation to observe doctors' advice to lose weight.  
 - In an action to recover for personal injuries allegedly resulting from an automobile accident, the trial court did not err in charging the jury that the injured plaintiff is under a duty to lessen damages by following reasonable instructions and advice of the plaintiff's physicians insofar as is reasonably possible, when there was medical evidence to the effect that the plaintiff's back and leg pain was caused by the plaintiff's obesity, and the plaintiff admitted that almost every doctor who had treated the plaintiff for the pain had told the plaintiff that not much could be done for the plaintiff unless the plaintiff lost some weight. Butler v. Anderson, 163 Ga. App. 547, 295 S.E.2d 216 (1982). 
  Obligation to avoid damages resulting from attorney's mistake.  
 - In a legal malpractice action, when it was shown that the client could have avoided damages resulting from the attorney's mistake, but did not do so, recovery was limited to those losses the client would have suffered had damages been properly mitigated. Crowley v. Trust Co. Bank, 219 Ga. App. 531, 466 S.E.2d 24 (1995). 
  Insurer's obligation to minimize loss.  
 - A workers' compensation insurer claiming that the insurer issued a policy based on negligent misrepresentations by an agent and the insured that the insured qualified for coverage through the assigned risk pool had a duty to protect itself from additional damages once the misrepresentations were made and should have been discovered. It was the insurer's responsibility to limit further damages that proximately flowed from the original wrongful acts. United States Fid. & Guar. Co. v. Paul Assocs., 230 Ga. App. 243, 496 S.E.2d 283 (1998). 
  Failure to mitigate damages by beneficiaries of trust.  
 - When a bank was liable to the beneficiaries of a trust for not investing the trust's assets in treasury bills, the beneficiaries had a duty to mitigate their damages, and their delay in notifying the bank that the trust's settlor had died, and in probating the estate, causing the trust to be liable for past due estate taxes, reduced the damages the beneficiaries were entitled to because the bank's breach was not a positive tort exempt from mitigation. Wachovia Bank of Ga., N.A. v. Namik, 275 Ga. App. 229, 620 S.E.2d 470 (2005). 
  No mitigation required in case of fraud.  
 - In the case of fraud, a positive tort, it is not affirmatively required that the injured party mitigate in order to recover. Haley v. Oaks Apts., Ltd., 173 Ga. App. 44, 325 S.E.2d 602 (1984). 
  Cross examination allowed regarding financial ability to repair.  
 - Since mitigation of damages is properly an issue in a claim for damages from tortious misconduct, questions elicited on cross examination concerning the buyer's financial ability to make necessary repairs to the buyer's house were properly allowed to impeach the earlier testimony, in which the buyer testified the buyer was financially unable to make the necessary repairs to the roof of the house to correct the alleged defect in the roof. Blaxton v. Clemens, 202 Ga. App. 668, 415 S.E.2d 304 (1992). 
  Reasonable efforts.  
 - Fact that the plaintiffs were offered and could have recovered $2.1 million from the third-party companies in 2004 raised an issue of fact on mitigation, but did not entitle the defendants to summary judgment. Christenbury v. Locke Lord Bissell & Liddell, LLP, F. Supp. 2d (N.D. Ga. Aug. 22, 2013). 
  Jury instructions.  
 - In a medical malpractice action, when part of the defense was that the injuries for which the plaintiff sought recovery were attributable to the plaintiff's negligence in failing to submit to recommended treatment, a charge on the contribu- tory-negligence rule was appropriate and, as there was evidence that the injuries were also the product of the defendant's negligence, a charge on comparative-negligence and its "equal to or greater than" bar was also warranted. Whelan v. Moone, 242 Ga. App. 795, 531 S.E.2d 727 (2000). 
 
 In a couple's personal injury case, there was no evidence to justify a charge on mitigation of damages under O.C.G.A. § 51-12-11. There was no evidence that the couple did activities that aggravated their conditions, stopped treatment despite medical advice, failed to obtain treatment, or otherwise failed to exercise ordinary care and diligence. Ga. Farm Bureau Mut. Ins. Co. v. Turpin, 294 Ga. App. 63, 668 S.E.2d 518 (2008). 
  Jury question.  
 - When a bank customer proved that wrongful dishonor of a check created a default the customer could not cure, the customer's subsequent failures, primarily of omission, and other happenings would lessen the damages, but would not remove the bank's wrongful dishonor as a matter of law; that remains to be determined as a question of fact and is an issue for the jury. Malak v. First Nat'l Bank, 195 Ga. App. 105, 393 S.E.2d 267 (1990). 
  Mitigation evidence relevant.  
 - In a property owner's action for trespass and nuisance, the trial court did not err in denying the owner's motion in limine to exclude evidence suggesting that the owner should have built or re-built drains on the property because, at a minimum, the evidence the owner sought to exclude was relevant to the owner's claim of negligence in several ways, and any possible error admitting evidence of mitigation or decisions regarding the drains vis-a-vis the owner's claims of nuisance and trespass was self-induced. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010). 
 
 Cited in Smith v. Hightower, 80 Ga. App. 293, 55 S.E.2d 872 (1949); Gleason v. Rhodes Ctr. Pharmacy, Inc., 94 Ga. App. 439, 95 S.E.2d 293 (1956); Glassman v. Phoenix Ins. Co., 117 Ga. App. 171, 160 S.E.2d 264 (1968); Jernigan v. Carmichael, 145 Ga. App. 560, 244 S.E.2d 92 (1978); Community Fed. Sav. & Loan Ass'n v. Foster Developers, Inc., 179 Ga. App. 861, 348 S.E.2d 326 (1986); Johnstone v. Malone Office Equip. Co., 192 Ga. App. 137, 384 S.E.2d 208 (1989); Walker v. Hurd, 195 Ga. App. 855, 394 S.E.2d 925 (1990). 
 
 RESEARCH REFERENCES 
 
 Am. Jur. 2d. 
 
 - 22 Am. Jur. 2d, Damages, §§ 346-398, 508 et seq. 
  C.J.S.  
 - 25 C.J.S., Damages, § 184 et seq. 
  ALR.  
 - Duty to give bond and procure return of property in order to mitigate damages from its wrongful seizure under legal process, 33 A.L.R. 1479. 
 
 Duty of one suing for damage to vehicle to minimize damages, 55 A.L.R.2d 936. 
 
 Necessity and sufficiency, in personal injury or death action, of evidence as to reasonableness of amount charged or paid for accrued medical, nursing, or hospital expenses, 12 A.L.R.3d 1347. 
 
 Anti-hitchhiking laws: their construction and effect in action for injury to hitchhiker, 46 A.L.R.3d 964. 
 
 Duty of injured person to submit to surgery to minimize tort damages, 62 A.L.R.3d 9. 
 
 Duty of injured person to submit to nonsurgical medical treatment to minimize tort damage, 62 A.L.R.3d 70. 
 
 Failure to lose weight as basis for reduction of damages in personal injury action, 24 A.L.R.5th 174. 
 
 Smoking as basis for reduction of damages in personal injury action, 25 A.L.R.5th 343.