Damages in the News: Tracy Morgan v Wal-Mart

The term ‘mitigation of damages’ is a common phrase in analyses of alleged damages in employment discrimination and personal injury lawsuits. Economists often offer expert opinions on how a plaintiffs’ future employment opportunities will impact alleged economic losses. This may include an analysis of plaintiffs’ actions to seek employment as compared to industry data, and employment opportunity outlooks based on job search engine data.

Mitigation of damages is a much broader term, and is the concept that an injured party has a duty to act within reasonable reals to minimize the harm to his or her damages.

The concept of the ‘duty to mitigate damages’ has recently made headlines in a high-profile case involving actor and comedian Tracy Morgan. Morgan, 45, had a broken nose, leg and ribs resulting from a six-car pile-up involving a Wal-Mart truck that left another comedian, James McNair dead on June 7, 2014.

Wal-Mart faults Morgan and others in the limousine for not wearing seatbelts, alleging that the plaintiffs aren’t entitled to damages because they “failed to mitigate their losses.” Benedict Morelli, a lawyer for the plaintiffs, said in an interview to Reuters, “It’s not a defense. They’re trying to mitigate their damages.”

Morgan has not yet specified the amount of economic damages he is seeking. It is likely such calculations will be presented by an economic expert.