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What Is Duty to Mitigate?

Renee Booker
Renee Booker

In many jurisdictions throughout the world, within the area of civil law, a duty to mitigate damages is required. In essence, a duty to mitigate damages means that a potential plaintiff may not just sit back and let damages accrue without doing something to limit or minimize the accrual of damages. In many cases, a court will not allow a plaintiff to collect damages past the point at which he or she could have reasonably stopped the accrual.

A landlord tenant dispute is an excellent example of when the duty to mitigate damages is often present. When a landlord realizes that a tenant has vacated a property prior to the end of the agreed upon date of termination of the lease agreement, the landlord often has a duty to attempt to re-rent the property as soon as reasonably possible. If, for example, the tenant vacated the property six months into a 12-month lease, the landlord cannot simply leave the property vacant and then claim damages for the entire six-month period that the property was vacant.

Businesswoman talking on a mobile phone
Businesswoman talking on a mobile phone

Another example of when the duty to mitigate damages arises is in construction contract disputes. When a potential plaintiff realizes that a repair was not accomplished in a satisfactory manner by the contractor, the plaintiff may have the duty to have another contractor fix the problem so that additional damages do not accrue as a result of the original work. If the plaintiff does not make a reasonable attempt to mitigate damages, a court may limit the amount of the judgment entered against the contractor. The defendant may, eventually, be ordered to pay the cost of repairing the original work.

A personal injury accident is yet another example of when the duty to mitigate is often found. A plaintiff who is injured as the result of an accident and therefore cannot perform the duties of his or her regular employment may also be required to mitigate the damages by attempting to find another job that he or she can do. Of course, the plaintiff's injuries may prevent him or her from performing any type of work; however, the idea is that, if another type of work is possible, then he or she must accept the employment or his or her damage award will be limited.

The duty to mitigate damages has a reasonableness component to it. A potential plaintiff must only do what is reasonable, under the circumstances, to minimize or limit the damages. Of course, a plaintiff is not required to go to great lengths to limit damages that were caused by another person, but, at the same time, the plaintiff cannot unfairly profit from the defendant's tortious conduct.

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