Also known as: avoidable damages · avoidability · mitigation of damages · avoidable consequences
Written by attorneys · grounded in primary & secondary sources — see below
A damages limitation that bars recovery for losses an injured party could have prevented through reasonable efforts after a breach or tort. The rule requires the injured party to take steps that avoid loss without undue risk, burden, or humiliation. Recovery remains available for losses that persist despite reasonable mitigation attempts.
Clear Housing terminated a commercial lease with Prairie Properties after two years. A restaurant chain offered to sublease at a modestly lower rent, but Prairie Properties declined to avoid competition. Prairie Properties then sought full remaining rent from Clear Housing. Recovery is limited to the difference between the original rent and the sublease amount because the loss could have been reduced by accepting the offer.
Twentieth Century-Fox terminated its contract with Shirley MacLaine Parker for a musical film. The studio offered her a different western role with comparable pay but distinct artistic demands. Parker declined the substitute and sued for the original contract amount. Damages are measured by the difference because the offered role was not substantially similar employment that she was required to accept.
Select any source to read its text and confirm it supports the definition.
Lena suffered a foot fracture after Ortiz negligently failed to repair a stair rail. Doctors instructed her to use crutches, but she continued walking normally out of embarrassment. Her injury worsened into permanent impairment. Recovery for the worsened condition is not reduced because Ortiz acted with conscious recklessness toward the known risk.
De La Tour hired Hochster as a courier for a June tour but canceled the engagement in May. Hochster immediately sought other work rather than waiting until the original start date. He recovered lost wages for the period before the tour was to begin. The early repudiation allowed suit without requiring Hochster to remain idle until performance was due.
Recovery is not barred. The rule protects a party who attempts mitigation in good faith even if the efforts do not fully eliminate the harm.
Supporting sources
The rule is relaxed. Damages are not reduced for avoidable consequences unless the plaintiff herself intentionally or heedlessly failed to protect her interests after the tort.
Supporting sources
Rejection counts as failure to mitigate only if acceptance would not impose undue risk, burden, or humiliation. A nonprofit may reject conditional grants that would force abandonment of its core mission.
Supporting sources
The defendant bears the burden as an affirmative defense. The defendant must show both that reasonable mitigation steps were available and that the plaintiff failed to take them.
Supporting sources
…toe surgery as relevant to comparative fault. However, the Court concluded that her post-surgery behavior was relevant only to avoidable consequences. On remand, the jury was instructed to arrive at two percentage figures regarding plaintiff's conduct: first, the degree to which her conduct after treatment had begun was responsible for…