California Civil Jury Instructions (CACI)

3931. Mitigation of Damages (Property Damage)

If you decide [name of defendant] is responsible for the original harm, [name of plaintiff] is not entitled to recover damages for harm to [his/her] property 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] at the time, including [his/her] 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] spent for this purpose.

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 y 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.)

"A plaintiff who suffers damage as a result of either a breach of contract or a tort has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided. Here the jury determined that 25 percent of the 'property damage to the house' could have been avoided. That damage was measured by the cost of repair, i.e., $130,000. The court was obligated to give effect to the jury's finding and reduce this aspect of the award to $97,500." (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41 [21 Cal.Rptr.2d 110], internal citations omitted.)

"A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts. Thrifty-Tel's only response is that mitigation does not ' "require a complex series of doubtful acts and expenditures." ' Picking up the telephone to reach out and touch the Bezeneks or sending them a letter was complex, doubtful, or expensive? Based on Myron Bezenek's unchallenged testimony, we must presume that simple expedient would have averted the second hacking episode. Accordingly, Thrifty-Tel is not entitled to recover damages for the February 1992 event." (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568-1569 [54 Cal.Rptr.2d 468], 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 verted. . . .' " (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066 [232 Cal.Rptr. 528, 728 P.2d 1163], internal citations omitted.)

"Generally, '[a] person injured by the wrongful act of another is bound . . . to exercise reasonable care and diligence to avoid loss or minimize the resulting damages and cannot recover for losses which might have been prevented by reasonable efforts and expenditures on his part.' The burden of proving facts in mitigation of damages rests upon the defendant." (Hunter v. Croysdill (1959) 169 Cal.App.2d 307, 318 [337 P.2d 174], internal citations omitted.)

"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." (City of Oakland v. Pacific Gas & Elec. Co. (1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations omitted.)

Restatement Second of Torts section 918 provides:

(1) Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.

(2) One is not prevented from recovering damages for a particular harm resulting from a tort if the tortfeasor intended the harm or was aware of it and was recklessly disregardful of it, unless the injured person with knowledge of the danger of the harm intentionally or heedlessly failed to protect his own interests.

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1382-1385, pp. 852-855

4 Levy et al., California Torts, Ch. 53, Mitigation and Collateral Source Rule, §§ 53.01-53.04 (Matthew Bender)

California Tort Damages (Cont.Ed.Bar 1988) Restrictions on Recovery, §§ 15.22-15.23

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, §§ 6:1-6:6

(New September 2003)