Motor Vehicle Law: Court follows the majority view and holds that it is legally sufficient for a defendant to raise as a special defense the plaintiff’s failure to mitigate his or her damages

The plaintiff claims to have sustained injuries and losses arising from a motor vehicle collision allegedly caused by the negligence of the defendant. The defendants asserted the following special defense: “The Plaintiff’s claim is barred by his failure to mitigate damages to the extent he failed to use reasonable care to minimize the effects of his injury, including incurring medical treatment and expenses that were not necessary, failing to follow his doctor’s instructions regarding the treatment of his injuries to promote recovery and prevent any aggravation or increase of the injury, and by making his condition worse by not taking reasonable care to promote his recovery or prevent any aggravation or increase of the alleged injuries.”

Plaintiff’s Allegations and Defendants’ Special Defense

The plaintiff moved to strike this special defense on the grounds that it is legally insufficient. There is a split of authority among the Superior Courts as to whether a defendant may plead failure to mitigate damages as a special defense. Those courts prohibiting mitigation of damages from being raised as a special defense base their decision on the fact that mitigation of damages is not among those special defenses listed in the Practice Book and on the ground that mitigation of damages fails to show the plaintiff has no cause of action.

Split of Authority on Mitigation of Damages

On the other hand, those decisions permitting mitigation of damages to be pleaded as a special defense reason that it should be allowed because it puts the plaintiff on notice that failure to mitigate will be an issue at trial. Although this issue has not been addressed by the Appellate Court, the majority of Superior Court judges have held that a plaintiff’s failure to mitigate damages is appropriately pled as a special defense.

The court further reasons that a special defense is a plea in avoidance of liability. Strictly speaking, a claim that the plaintiff has failed to mitigate damages is not such a plea. With that said, allowing the claim to be raised as a special defense serves the function of putting the plaintiff on notice that the defendant intends to raise that issue at trial, which, in turn, serves the ends of justice.

Court’s Ruling on the Special Defense

Moreover, the court explains that although failure to mitigate is not listed within Practice Book § 10-50, that list does not purport to be exhaustive, and treating it as exhaustive would contravene the essential design of the Practice Book, which is to facilitate business and advance justice. The court therefore adopts the majority view, finding the defendants’ special defense to be legally sufficient and denies the plaintiff’s motion to strike.

French v. Martone, Et. Al., No. NNI-CV24-6032603S, 2024 WL 4490659 (Conn. Super. Ct. Oct. 9, 2024)