California Civil Jury Instructions (CACI)

3961. Duty to Mitigate Damages for Past Lost Earnings

[Name of plaintiff] is not entitled to recover damages for economic losses that [name of defendant] proves [name of plaintiff] could have avoided by returning to gainful employment as soon as it was reasonable for [him/her] to do so.

To calculate the amount of damages you must:

1. Determine the amount [name of plaintiff] would have earned from the job [he/she] held at the time [he/she] was injured; and

2. Subtract the amount [name of plaintiff] earned or could have earned by returning to gainful employment.

The resulting amount is [name of plaintiff]'s damages for lost earnings.

Directions for Use

For an instruction on mitigation of damages involving personal injury, see CACI No. 3930, Mitigation of Damages (Personal Injury).

Sources and Authority

"A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts." (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568 [54 Cal.Rptr.2d 468].)

"The doctrine of mitigation of damages holds that '[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.' A plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion. The duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable. '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.)

"We also acknowledge the well-established rule that an injured plaintiff has a duty to mitigate his damages. However, once it is established that a duty to mitigate is present, the burden nevertheless falls on the wrongdoer to show that the damages were lessened or might have been lessened by the plaintiff." (Jones v. Consolidated Rail Corp. (6th Cir. 1986) 800 F.2d 590, 593.)

"Normally, in a FELA action a plaintiff is entitled to recover the difference between what he was able to earn before injury and what he earned or could have earned thereafter." (Trejo v. Denver & Rio Grande Western Railroad Co. (10th Cir. 1977) 568 F.2d 181, 184.)

"An unemployed plaintiff who is able to look for work does not satisfy his duty to mitigate by waiting passively for employment to be offered. The opportunity to mitigate is not merely the opportunity to accept a job, but the opportunity to seek appropriate work when one is able to do so. If that opportunity is shown to have existed, the issue of mitigation should not normally be prevented from reaching a properly instructed jury." (Wilson v. Union Pacific Railroad Co. (10th Cir. 1995) 56 F.3d 1226, 1232.)

Secondary Sources

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

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

(New September 2003)