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.