Failure to Mitigate Damages by Smoking

A victim who continued to smoke after spine surgery, despite being advised and urged by his doctor to stop smoking, was not guilty of failure to mitigate damages because he recognized the severity of his smoking addiction and vastly reduced the number of cigarettes consumed per day. According to the Louisiana Fifth Circuit Court of Appeals, the victim’s “common sense and fortitude addressed the psychological and physical addiction which possesses him, and, ergo, we see no failure on his behalf in failing to mitigate damages.” Blanchard v. Means Inds., 93-715 (La.App. 5 Cir. 3/16/94), 635 So.2d 288, 293-94.