Also known as: mitigation of damages · mitigate damages · duty to mitigate damages · avoidable consequences doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A rule that when the defendant's tortious conduct has caused harm to the plaintiff and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.
Carla slipped on spilled juice in a supermarket and sprained her ankle. The store doctor offered a free walking boot and low-cost therapy referrals that would likely have prevented chronic instability. Carla declined and relied on home remedies, leading to later surgery. The supermarket is liable only for the initial sprain because Carla's refusal of reasonable treatment bars recovery for the avoidable worsening.
Lena suffered a compound leg fracture when a pipe fell at a construction site. Doctors ordered rest and crutches to avoid weight-bearing. Lena ignored the orders to keep her job, causing a severe nonunion that required extra surgeries. Metro Steel remains liable for the original fracture but not for the additional harm Lena could have prevented by following medical advice.
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Maria tore a knee ligament after tripping on IV tubing left in a hospital hallway. Her doctor recommended physical therapy and a brace involving modest time off and co-pays. Maria refused, and her condition worsened into long-term mobility limits. The hospital is responsible for the initial tear but not for the incremental disability Maria could reasonably have avoided.
Luis needed back surgery after an insurer delayed approval. His doctor offered immediate surgery on a payment plan, warning of permanent nerve damage if delayed. Luis refused and waited for insurance, resulting in lasting injury. Harbor Mutual can limit recovery for the permanent damage if Luis knowingly and heedlessly rejected the available treatment.
Diaz developed breathing problems after Lopez sprayed pesticide near his bunkhouse. Free clinic appointments were available, yet Diaz skipped them to work overtime and his condition became chronic. Lopez's conduct was at least reckless, so Diaz may still recover for the worsened condition unless he intentionally or heedlessly ignored the known danger.
Harbor Estates sued Sun Buildings for lost rent after the tenant vacated early. Sun Buildings proved Harbor Estates made no reasonable efforts to re-lease the space for months. The landlord's failure to mitigate means recovery is reduced by the rent that reasonable re-letting would have produced.
Contributory negligence concerns the plaintiff's conduct before or during the tort that helps cause the original injury. Mitigation addresses the plaintiff's conduct after the injury occurs and limits only the amount of recoverable damages for harm that could have been avoided.
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When the defendant intended the harm or acted with reckless disregard, the plaintiff generally may recover even for harm that reasonable efforts could have avoided. Recovery is still barred if the plaintiff, knowing the danger, intentionally or heedlessly failed to protect his own interests.
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The plaintiff must use reasonable efforts and reasonable expenditures under the circumstances. Routine, low-burden steps such as accepting a free walking boot, following orders to rest, or attending subsidized clinic visits are typically required when they would likely prevent additional harm.
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No. Refusal of reasonable treatment reduces damages only for the additional harm that could have been avoided. The plaintiff may still recover for the original injury and any consequences that reasonable efforts could not have prevented.
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…would not proximately result from the breach of warranty."), and traditional contract principles, under which a buyer has a duty to mitigate damages and cannot recover for damages that she "could have avoided without undue risk, expense or humiliation," Restatement (Second) of Contracts § 350(1) (1965). Other courts have noticed the…