A Duty to Mitigate

So I accidentally knife you. You are bleeding and will bleed to death if you don’t get attention. You hate me and want me to suffer. You stand there, despite the immediate proximity of a doctor and a 99% chance of recovery if treated. Is it reasonable under common law for you to bleed to death, thus permitting your next of kin to sue me for wrongful death?

If you can stand there and do nothing and that is considered reasonable, then there is no doctrine of mitigated damages.

If it is unreasonable for you to stand there and do nothing, you have a duty to reasonably seek treatment and mitigate damages if you hope to recover.

Now assume your motivation not to seek treatment is motivated by religious conviction. Does that change the reasonableness of your decision? How? By saying you have to mitigate damages under one motivation and not under the other, is the law not “respecting an establishment of religion?” If it is unreasonable for me to refuse to seek damages simply because I hate you, why is the law “respecting” my decision to bleed to death when my decision is based on an establishment of religion? (What if the underlying tenet in that religious faith against seeking medical treatment is that God hates tortfeasors and you have a religious duty to punish the tortfeasor through your earthly choice of bleeding to death?)

If it is reasonable for you not to mitigate based on a subjective motivation, then the law is taking exception for certain motivations that are reasonable and others that are not. It is reasonable for you not to mitigate and seek damages when you are doing it under a religious imperative but you must mitigate if all you are acting under is a personal belief. While all objectivity appears to go out the window, the court is actually doing what it claims not to: passing on the relative merits of a person’s subjective beliefs. In other words, it’s reasonable to stand there and bleed to death if you can prove that it was a religious belief (and perhaps intended the tortfeasor to suffer), but not if you were an honest atheist and just wanted the tortfeasor to suffer. Therefore the court is still saying one is reasonable and another is not.

The fact that the victim is entitled to any remuneration at all is based on the concept that the actor behaved in a manner that was objectively unreasonable according to community norms and standards. Why should the victim be held to a different standard? Why should the victim be allowed to react to a situation devoid of objective judgment by the community simply because her motivations are attached to her concept of deity?

If subjective motivation then becomes the determining factor in assigning liability for damages, then what stops the law from applying a similar “reasoning” to other actions based on subjective motivation? In other words, if you are allowed to “react” without being subject to an objectively reasonable standard, why can’t you “act” without being subject to an objectively reasonable standard? What stops the law from creating an affirmative defense for murder based on one’s religious convictions? If I can decide to react beyond objectively reasonable standards when someone puts my life in danger, what stops me from using that same justification structure as a defense in putting someone else’s life in danger? Or, if we demand an “actor” to behave in an objectively reasonable fashion, why not the “reactor?”

In Conclusion: Objective reasonableness MUST be the standard when deciding if a victim has a right to seek relief, even if their opportunity to mitigate goes against a person’s personal religious beliefs.

The victim may always choose to follow her belief not to seek mitigation, but she cannot then sue the tortfeasor for the increased damages. The First Amendment requires that religious beliefs should not even be discussed in the court room in this type of analysis. If a victim acted unreasonably in refusing to mitigate damages according the objective assessment of jury, the victim cannot seek compensation, regardless of their personal belief structure.

Inevitably, the jury will find certain actions to be unreasonable even in the face of strongly held religious convictions. Such is the hazard and necessity of living in a pluralistic society. To do otherwise, as the Supreme Court has said, would “court anarchy.” (Employment Div., Dep’t Human Resources v. Smith, 494 U.S. 872, 888 (1990).

Textual v. Contextual Statutory Interpretation

It appears the dominant theory to interpeting statutes is looking to construction and legislative history. But when legislative history conflicts? When the House says one thing and the Senate another? (See Beech Aircraft Corp. v. Rainey, 488 U.S. 153.) How about when you have four or five different factions with different interpretations, none of which are the majority? Whose do you go with? It seems when there is not a clear voice coming from Congress, "Legislative Intent" is best left alone, and a textualist approach is more rational.

The Limits of the Court and Politics

"The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements."

Baker v. Carr, 369 U.S. 186 (1962) (Frankfurter, J. dissenting.)