California Civil Jury Instructions (CACI) (2017)

3931. Mitigation of Damages (Property Damage)

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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.
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.)
• “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
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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 findin 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 averted . . . .’ ” (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.” (Oakland v. Pacifi Gas &
Electric Co. (1941) 47 Cal.App.2d 444, 450 [118 P.2d 328], internal citations
omitted.)
• Restatement Second of Torts section 918 provides:
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(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 (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 (Matthew
Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort (Matthew Bender)
1 California Civil Practice: Torts, §§ 6:1–6:6 (Thomson Reuters)
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