Also known as: duties to mitigate · mitigate damages · mitigation of damages · mitigation duty · duty of mitigation
Written by attorneys · grounded in primary & secondary sources — see below
A rule requiring a nonbreaching party or tort victim to make reasonable efforts to limit losses resulting from the other party's breach or tort. Failure to satisfy the rule bars recovery of damages that could have been avoided without undue risk, expense, or humiliation.
Denise Donovan's negligent driving damaged Derek Douglas's delivery truck. The collision also destroyed an illegal billboard that had blocked visibility for Douglas's customers. When Douglas sued for property damage, the court credited the value of the removed obstruction against the repair costs because the tortious act conferred an equitable benefit on the same interest harmed.
Dominic Drake vacated his apartment two months into a one-year lease with Desert Oil. Desert Oil advertised the unit in local listings and showed it to prospective tenants within a week. Because the landlord made reasonable efforts to relet, Drake remained liable only for the rent due until a new tenant took possession.
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Dillon Energy assigned its commercial lease to Duffy Construction without the landlord's consent. The landlord refused consent on commercially reasonable grounds and promptly sought a replacement tenant. Because the landlord satisfied its duty to mitigate, the original tenant's damages for the assignment breach were reduced by the rents the landlord could have collected from a suitable substitute.
Damian Decker purchased defective cigarettes from a manufacturer. After discovering the defect, Decker continued smoking the product instead of switching to a safer brand available on the market. The court reduced his damages for personal injury because he failed to take reasonable steps that would have avoided further harm.
Diane Dawson's home suffered water damage from a neighbor's negligence. Dawson received an estimate for immediate repairs that would have prevented mold growth but waited six months to act. The court denied recovery for the mold-related losses because Dawson could have avoided them through reasonable mitigation efforts.
Destiny Davis contracted with Drake Logistics to pave a parking lot. Drake Logistics repudiated after Davis had already purchased materials. Davis immediately contacted three other paving companies and accepted the lowest reasonable bid. Because Davis acted promptly to obtain substitute performance, she recovered only the difference between the original contract price and the cost of cover.
The plaintiff cannot recover damages for harm that reasonable medical attention would have prevented. The duty requires only reasonable efforts, not extraordinary measures or guaranteed success.
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In most jurisdictions the landlord must make reasonable efforts to relet the unit. Failure to mitigate limits recovery to damages that could not have been avoided by a reasonable search for a replacement tenant.
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Recovery is barred for losses that reasonable cover efforts would have prevented. Courts examine whether the buyer acted with reasonable diligence under the circumstances once the breach occurred.
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Rejection is permitted if acceptance would impose an undue burden or humiliation. Mission conflict can qualify as undue burden when the substitute fundamentally changes the injured party's purpose.
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…have been modernly applied to the construction of leases.” 56 N.J. at 141. Application of the contract rule requiring mitigation of damages to a residential lease may be justified as a matter of basic fairness.[^maj-4] Professor McCormick first commented upon the inequity under the majority rule when he predicted in 1925 that…