In California, you have a legal obligation to mitigate your damages in a variety of legal claims. This means you have to take reasonable steps to reduce how much you lose after an accident or a breach of contract. Losses that you do not mitigate will not be compensated in a lawsuit.
The duty to mitigate damages in California
Broadly speaking, if someone else does something wrong to you and you suffer, you have to minimize how much you lose due to their misconduct. If you do not take reasonable steps and ordinary care to do this and then file a lawsuit for compensation, the defendant will not be liable for the losses you could have avoided.
This situation can occur in several situations, including:
- personal injury cases, also known as tort claims, and
- breach of contract claims, including real estate issues like landlord/tenant disputes.
The purpose of the doctrine of the mitigation of damages is to ensure that the defendant only has to compensate you for losses that they caused. If the rule did not exist, you could deliberately let your losses get worse in order to make the defendant pay more through no fault of their own. This would be unfair to the defendant, and would allow you to collect a windfall.
Mitigation of damages is a defense to a lawsuit. It is up to the defendant to raise it and to prove that you did not act like a reasonable person in minimizing your losses.[1]
Mitigation of damages in personal injury cases
The personal injury lawyers at our law firm have found that the mitigation of damages defense most frequently occurs in personal injury law. This includes claims of negligence that stem from:
- car accidents,
- premises liability, or slip and fall cases,
- medical malpractice, and
- dog bite claims.
In these personal injury claims, the victim of an accident sues the negligent party that hurt them. The victim demands compensation from the defendant for their losses. The defendant then argues that the victim failed to mitigate his or her damages and should not be liable for them.
The California Civil Jury Instructions tell the jury:
Suppose you decide the defendant is responsible for the original harm. In that case, the plaintiff is not entitled to recover damages for harm that the defendant proves the plaintiff could have avoided with reasonable efforts or expenditures.[2]
For example: Rachel has surgery to remove a cyst from her face. During the operation, the surgeon severs her facial nerve. This leaves the left side of Rachel’s face paralyzed. The surgeon recommends physical therapy as medical treatment. However, Rachel only goes to a few sessions before giving up. Several years later, the left side of her face only has around 20 percent of its normal functions. Rachel sues the surgeon. The surgeon argues that the lack of improvement is from Rachel’s refusal to seek medical attention.[3]
In breach of contract cases
The mitigation of damages is also a defense in breach of contract claims under California law.
In these cases, you would have had a binding contract with the defendant. The defendant then breaks that contract, causing you to suffer financial losses. You would have a legal duty to mitigate those losses. If you fail to do so, you would not be able to recover compensation for what you could have avoided.
For example: A plant nursery hires an irrigation contractor to do some work. The contractor negligently destroys the nursery’s water pipeline. The nursery has the option of spending $600 to get water from another source, but chooses not to. Without water, the nursery’s plant inventory dies, causing $17,000 in losses.[4]
Steps required to mitigate damages
What you have to do to mitigate your damages depends on the circumstances.
California law requires that you, in good faith, make reasonable effort and make reasonable expenditures to reduce your losses. You do not have to take unreasonable or impracticable measures, or those that are financially unavailable to you. The reasonableness of an injured person’s efforts are judged in light of their circumstances in the moment, and not in hindsight.[5]
Some common efforts necessary to mitigate your losses may include:
- getting necessary medical care,
- performing the due diligence necessary to find ways to reduce the amount of damages that you are likely to lose,
- returning to work after a doctor clears you, in order to minimize your lost wages,
- finding alternatives for the services that the defendant was to provide, and
- cleaning up after the defendant before the problem can cause other issues.
Our personal injury attorneys have found that the doctrine of mitigation of damages tends to only come up if the injured party throws his or her hands up and lets the problem get worse. Because the victim is the one letting things get out of control, the law will not hold the defendant liable for the resulting losses.
For example: Mary and Paul buy a newly-constructed house, only to find numerous construction defects. They demand that the construction company fix them, but the company delays. Mary and Paul refuse to find another company to help and, over the course of 4 years, the house deteriorates.[6]
Legal Citations:
[1] Jackson v. Yarbray, 179 Cal.App.4th 75 (2009).
[2] California Civil Jury Instructions (CACI) No. 3930.
[3] Facts from Lemons v. Regents of University of California, 21 Cal.3d 869 (1978).
[4] Facts from Green v. Smith, 261 Cal.App.2d 392 (1968).
[5] Christiansen v. Hollings, 44 Cal.App.2d 332 (1941) and Valle de Oro Bank v. Gamboa, 26 Cal.App.4th 1686 (1994).
[6] Facts from Shaffer v. Debbas, 17 Cal.App.4th 33 (1993).
