CACI No. 3930. Mitigation of Damages (Personal Injury)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3930.Mitigation of Damages (Personal Injury)
If you decide [name of defendant] is responsible for the original harm,
[name of plaintiff] is not entitled to recover damages for harm that [name
of defendant] proves [name of plaintiff] could have avoided with
reasonable efforts or expenditures.
You should consider the reasonableness of [name of plaintiff]’s efforts in
light of the circumstances facing [him/her/nonbinary pronoun] at the time,
including [his/her/nonbinary pronoun] ability to make the efforts or
expenditures without undue risk or hardship.
If [name of plaintiff] made reasonable efforts to avoid harm, then your
award should include reasonable amounts that [he/she/nonbinary
pronoun] spent for this purpose.
New September 2003
Sources and Authority
• “It has been the policy of the courts to promote the mitigation of damages. The
doctrine applies in tort, wilful as well as negligent. A plaintiff cannot be
compensated for damages which he could have avoided by reasonable effort or
expenditures.” (Green v. Smith (1968) 261 Cal.App.2d 392, 396 [67 Cal.Rptr.
796], internal citations omitted.)
• “The frequent statement of the principle in the terms of a ‘duty’ imposed on the
injured party has been criticized on the theory that a breach of the ‘duty’ does
not give rise to a correlative right of action. It is perhaps more accurate to say
that the wrongdoer is not required to compensate the injured party for damages
which are avoidable by reasonable effort on the latter’s part.” (Green, supra, 261
Cal.App.2d at p. 396, internal citations omitted.)
• “The reasonableness of the efforts of the injured party must be judged in the
light of the situation confronting him at the time the loss was threatened and not
by the judgment of hindsight. The fact that reasonable measures other than the
one taken would have avoided damage is not, in and of itself, proof of the fact
that the one taken, though unsuccessful, was unreasonable. ‘If a choice of two
reasonable courses presents itself, the person whose wrong forced the choice
cannot complain that one rather than the other is chosen.’ The standard by which
the reasonableness of the injured party’s efforts is to be measured is not as high
as the standard required in other areas of law. It is sufficient if he acts
reasonably and with due diligence, in good faith.” (Green, supra, 261
Cal.App.2d at pp. 396-397, internal citations omitted.)
• “The correct rule is that an injured person must use reasonable diligence in
caring for his injuries. What is reasonable diligence depends upon all the facts
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and circumstances of each case. There is no hard and fast rule that the injured
person must seek medical care of a particular type. Self-care may be reasonable
under the circumstances, and the jury should be so instructed where that factor is
relevant.” (Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 346 [112 P.2d
723], internal citations omitted.)
• “ ‘The rule of mitigation of damages has no application where its effect would
be to require the innocent party to sacrifice and surrender important and valuable
rights.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691 [32
Cal.Rptr.2d 329], internal citations omitted.)
• “The duty to minimize damages does not require an injured person to do what is
unreasonable or impracticable, and, consequently, when expenditures are
necessary for minimization of damages, the duty does not run to a person who is
financially unable to make such expenditures.” (Valencia v. Shell Oil Co. (1944)
23 Cal.2d 840, 846 [147 P.2d 558], internal citations omitted.)
• “Contributory negligence was closely allied and easily confused with the rule of
mitigation of damages, on which the jury was also instructed. Both doctrines
involved the plaintiff’s duty to act reasonably. Contributory negligence was
concerned with the plaintiff’s negligence before being injured, while the
mitigation rule was concerned with a lack of due care after the injury. The effect
of contributory negligence was to bar all recovery by the plaintiff. In contrast, a
plaintiff’s failure to mitigate barred recovery of only the portion of damages
which could have been avoided by ordinary care after the injury.” (LeMons v.
Regents of University of California (1978) 21 Cal.3d 869, 874-875 [148
Cal.Rptr. 355, 582 P.2d 946], internal citations omitted.)
• “ ‘The rule of [mitigation of damages] comes into play after a legal wrong has
occurred, but while some damages may still be averted . . . .’ ” (Pool v. City of
Oakland (1986) 42 Cal.3d 1051, 1066 [232 Cal.Rptr. 528, 728 P.2d 1163],
internal citations omitted.)
• “[W]hile the burden of proving the extent of injury . . . actually incurred as a
result of a defendant’s tortious conduct lies with the plaintiff, the burden of
proving the plaintiff failed to act reasonably in limiting his or her consequential
damages - that is, failed to mitigate damages - is on the defendant . . . .”
(Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 97 [101 Cal.Rptr.3d 303].)
• “One who contributes to damage cannot escape liability because the
proportionate contribution may not be accurately measured. It is incumbent upon
the party alleging injury to prove the amount of damages. Respondent sustained
that burden in this case. If the damages proven could be reduced proportionately,
that burden rested upon appellant.” (Oakland v. Pacific Gas & Electric Co.
(1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations omitted.)
• “It is true that plaintiff is in duty bound to minimize his damage in any way that
he reasonably can, and if he negligently refuses to do so he cannot recover for
that which he might have prevented. It is for appellant to establish that the steps
taken by plaintiff to so minimize his loss or damage falls short of the obligation
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so fixed. In other words, the burden is on defendant to establish matters asserted
by him in mitigation or reduction of the amount of plaintiff’s damage, and
defendant here has not met that burden.” (McNary v. Hanley (1933) 131
Cal.App. 188, 190 [20 P.2d 966].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1624-1627
California Tort Damages (Cont.Ed.Bar) Restrictions on Recovery, §§ 15.22-15.23
4 Levy et al., California Torts, Ch. 53, Mitigation and Collateral Source Rule,
§§ 53.01-53.04 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.48
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.171 et seq.
(Matthew Bender)
1 California Civil Practice: Torts, §§ 6:1-6:6 (Thomson Reuters)
CACI No. 3930 DAMAGES
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