CACI No. 3931. Mitigation of Damages (Property Damage)

Judicial Council of California Civil Jury Instructions (2023 edition)

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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/
nonbinary pronoun] 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/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 latters 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
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 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. Pacific Gas & Electric 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 (11th ed. 2017) Torts, §§ 1798-1801
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)
California Civil Practice: Torts §§ 6:1-6:6 (Thomson Reuters)

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