Also known as: mitigate damages · mitigating damages · mitigated damages · duty to mitigate · avoidable consequences doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A principle requiring an injured party to take reasonable steps to minimize losses resulting from a breach of contract or tortious conduct. The injured party cannot recover damages that could have been avoided without undue risk, burden, or humiliation. Failure to mitigate reduces the recoverable amount to the extent the loss was avoidable.
Select any source to read its text and confirm it supports the definition.
Miguel Mendoza's negligent driving damaged Mina Mehta's fence but also cleared invasive vines that had been harming her garden. Mina spent nothing on vine removal after the accident. The court reduces her fence repair damages by the value of the cleared vines because the tortious conduct conferred a special benefit to the harmed interest.
Maria Morales vacated her apartment early and stopped paying rent. The landlord, Millennium Media, advertised the unit promptly and secured a new tenant within two months at the same rent. The court limits Millennium Media's recovery to the two months of lost rent because it satisfied the duty to mitigate by making reasonable efforts to relet.
Monica Morgan continued smoking after learning of health risks from cigarette warnings. Her estate sued the manufacturer for lung cancer damages. The court allows the jury to reduce the award to the extent her continued smoking after the warnings aggravated the harm, treating the conduct as a failure to mitigate rather than comparative fault.
Maurice Marshall learned his employer would not honor the promised tour guide position. He immediately accepted a comparable position with another firm instead of waiting for the original start date. The court denies recovery for wages during the period he could have worked elsewhere because his prompt acceptance of substitute employment fulfilled the mitigation duty.
Musa Mensah relied on a subcontractor's bid to secure a larger paving contract. When the subcontractor withdrew, Musa promptly obtained a replacement at a higher price rather than abandoning the project. The court awards only the difference between the original and replacement bids because Musa's reasonable cover efforts prevented greater losses.
Magnolia Foods terminated Monica Morgan from her lead role in a film. The studio offered her a different starring role in a lower-budget production that she declined as not substantially similar. The court reduces her lost-salary damages because she failed to accept comparable employment that would have mitigated the loss.
The party asserting the failure to mitigate must prove both that reasonable mitigation steps were available and that the injured party unreasonably failed to take them. This allocation appears in employment and lease cases where the breaching party must show comparable work or tenants existed.
No. The injured party need only accept substitutes that are substantially similar and do not impose undue burden or humiliation. An employee need not accept a demotion and a landlord need not accept a tenant who alters the premises in ways inconsistent with the original lease.
…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…
…been undermined by the adoption in California of a rule that lessors — like all other contracting parties — have a duty to mitigate
…of $129, causing petitioner damages
…which the New Jersey Supreme Court held that once a legal wrong has occurred, plaintiff's conduct after that time bears only on mitigation of damages
…The principle is analogous to the law relating to wrongful dismissal of servants, where immediate action is permitted and mitigation of damages
The duty arises once the injured party treats the repudiation as a breach and elects to seek damages rather than await performance. Reasonable efforts to find substitute performance must then begin promptly under the circumstances.
Yes. A plaintiff may recover reasonable expenditures made in a good-faith effort to avert further harm even if the effort ultimately fails. The Restatement treats such costs as part of the recoverable damages.
No. The landlord may lease other available units first without violating the mitigation duty. The rule expressly permits the landlord to satisfy its own leasing priorities before turning to the abandoned premises.