Also known as:minimize damages · minimization of damages · duty to mitigate damages · mitigation of damages
Written by attorneys · grounded in primary & secondary sources — see below
When the defendant's tortious conduct has caused harm to the plaintiff or to his property 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. The plaintiff may not obtain a windfall that ignores the measurable improvement to the harmed interest.
Sources & Authorities
How it applies
Common Examples
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Special Benefit Offsets Property Loss
A city crew negligently ruptured a water main and flooded the ground floor of an office building owned by Lopez Consulting. The city then replaced the damaged pipes, wiring, and HVAC with modern systems that increased the building's market value and lowered future maintenance costs. Lopez sues for full property damage and business interruption. The court reduces the award by the value of the special benefit conferred on the same property interest that was harmed.
Actress Rejects Comparable Role
Twentieth Century-Fox repudiates its contract with actress Shirley MacLaine Parker to star in a musical film. The studio offers her a leading role in a different western picture at the same compensation. Parker declines the substitute role and sues for the full contract price. The court holds that her recovery is limited to the difference between the contract price and any earnings from comparable employment she could have obtained.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Study Supplements
Parker v. Twentieth Century-Fox Film Corp.3 Cal.3d 176, 474 P.2d 689
Smoker Continues Harmful Conduct
Rose Cipollone sues cigarette manufacturers after developing lung cancer from decades of smoking. Evidence shows she continued smoking after learning of the health risks and after medical advice to quit. The jury reduces her damages award to reflect the portion of harm attributable to her failure to stop smoking once the risks were known.
Cipollone v. Liggett Group, Inc.893 F.2d 541 (3d Cir.1990), affirmed in part and reversed in part, 505 U.S. 504 (1992)
Ship Takes Costly Detour
Transatlantic Financing contracts to carry wheat from the United States to India. The closing of the Suez Canal forces a much longer voyage around the Cape of Good Hope. Transatlantic completes the voyage without seeking an alternative cargo or route that would have reduced the added expense. It later sues the United States for the full extra cost. The court limits recovery to the amount that could not reasonably have been avoided.
Transatlantic Financing Corp. v. United States363 F.2d 312 (D.C. Cir. 1966)
Employee Seeks New Position
Hochster contracts to serve as a courier for De La Tour beginning June 1. On May 11, De La Tour repudiates the agreement. Hochster immediately begins searching for substitute employment and accepts a comparable position on May 22. He sues for lost wages from the original contract. The court awards damages measured from the date of repudiation but reduced by the earnings Hochster reasonably obtained from the substitute work.
Hochster v. De La Tour2 EB. & B. 678, 118 Eng.Rep. 922
Common questions
Frequently Asked
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Does the duty to minimize damages apply in tort cases as well as contract cases?+
Yes. In tort actions an injured plaintiff must use reasonable efforts after the injury to avoid aggravating the harm. Failure to accept readily available, low-risk treatment that would have prevented later complications reduces recovery for the avoidable portion of the harm.
Supporting sources
When a defendant's conduct confers a special benefit on the same interest that was harmed, how does that affect damages?+
The value of the special benefit is considered in mitigation of damages to the extent equity requires. The plaintiff may still recover for uncompensated loss but cannot obtain a windfall that ignores the measurable improvement to the harmed interest.
Supporting sources
What standard determines whether a plaintiff's efforts to reduce damages are sufficient?+
The plaintiff must take only those steps that a reasonably prudent person would take under the circumstances. Heroic or unduly expensive measures are not required, but ordinary cooperation with safe, low-burden medical advice or prompt cover purchases in a rising market are expected.
Supporting sources
Does a plaintiff's delay in covering after repudiation bar all recovery?+
No. Direct damages measured by the market price at the time the buyer learned of the breach remain recoverable. Only consequential damages that could have been avoided by reasonable cover are barred by the delay.
Supporting sources
893 F.2d 541 (3d Cir. 1990), aff'd in part and rev'd in part, 505 U.S. 504 (1992)Torts
…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…