AVOIDABLE CONSEQUENCES
The doctrine that places the responsibility of minimizing
damages upon the person who has been
injured.
The major function of the doctrine is to
reduce the damages brought about by the defendant’s
misconduct. Ordinarily, an individual
cannot recover for losses that might have been
prevented through reasonable effort by the person,
particularly where the conduct causing the
loss or injury is not willful, intentional, or perpetuated
in bad faith. The rule of avoidable consequences
applies to both contract and TORT
actions, but is not applicable in cases involving
willful injury or where the plaintiff could not
possibly have circumvented any of the harm for
which he or she claims damages.
The efforts that the person who has been
injured must take to avoid the consequences of
the misconduct are required to be reasonable,
based upon the circumstances of the particular
case, and subject to the rules of common sense
and fair dealing. That which is reasonably
required is contingent upon the extent of the
potential injury as compared with the cost of
rectifying the situation, and the realistic likelihood
of success in the protective effort. A plaintiff
who neglects to mitigate damages will not be
entirely barred from recovering such damages
that he or she might have circumvented through
reasonable efforts.
Included in the effort that the law requires is
the payment of reasonable expenditures. The
injured party need not, however, make extraordinary
payments to prevent the consequences of
the wrongdoer’s conduct. The plaintiff ’s inability
to produce funds to meet the situation presented
can excuse efforts to reduce the injury.
Breach of Contract
A party injured by the breach of contract
generally must exercise reasonable efforts to
lessen the damages. This rule has no application
in an action on a contract for an agreed compensation.
Upon the breach of a contract to supply
PERSONAL SERVICE or the use of some type
of specific equipment or instrumentality, the
individual who agrees to furnish such service or
items must attempt to acquire a replacement
contract if one can reasonably be found. The
defendant can then prove, in attempting to
reduce damages, that the plaintiff has procured
other employment as well as the amount he or
she earned or might have earned by exercising
reasonable care and diligence. The test of the
applicability of this rule is whether the employment
or services of the plaintiff were personal in
nature. The rule is not applicable in contracts
that do not require all, or a significant portion,
of the plaintiff ’s time, or those that do not preclude
the plaintiff from becoming engaged in
simultaneous performance of other contracts.
Torts
A party who suffers a personal injury is
required to exercise ordinary care and perseverance
to find a cure, thereby reducing the damages
to the most practicable extent. Such an
individual should seek reasonable medical care
if so required by the injury. It is not necessary for
the person to undergo excessively painful treatment
or that which involves a significant hazard
of death or injury or offers a mere possibility of
a cure. The pain inherent in the necessary medical
care and treatment may be taken into consideration
in assessing whether the plaintiff
acted reasonably in declining to submit to it.
Although submission to treatment is not a prerequisite
to an award of damages, recovery cannot
be obtained for increased damages that stem
from the failure to submit to necessary medical
treatment. Conversely, the mere fact that medical
attention was not sought immediately, or at
all, will not proscribe an award of damages
where the circumstances did not reasonably
indicate that medical aid and attention was necessary.
In addition, an injured party has no absolute
duty to subscribe to a physician’s advice to mitigate
damages. The party might, however, under
some circumstances, be under an obligation to
exercise ordinary care in following such advice.
CROSS-REFERENCES
Mitigation of Damages.
