Mitigation of Damages

When a wrongdoing has been committed at your expense, the value of the loss/harm to you is known as damages. Sometimes, that figure is fairly easy to ascertain (for example, if you loan someone $5 and they fail to pay it back – you are out $5). Sometimes, that figure is tricky to ascertain (for example, someone harms your reputation, and you’re not sure quite how much loss it will cause your business over the coming months).

Each individual and entity has a duty to mitigate (or stop the spread of/minimize) damages once they occur. This is known as the duty to mitigate damages. For example, if someone throws a baseball through my window, I will have a reason to go after them for my damages. Cost of repairing the window, cleanup expenses, replacement for anything else that was damaged in my home when the ball came flying through, etc. If I have a hole in my window and I know a big rainstorm is coming, it is my duty to put up a tarp over the window, get the repair person out to fix the glass right away, etc. I cannot simply stand by and let water pour into my house through the window and then try to sue the person who threw the ball for the water damage on top of the damage from the initial incident. They have the obligation to pay for the harm they cause, but I have a duty to make sure it does not get worse.

As with damages, mitigation can be fairly simple (like the ball-through-the-window example) or more complex. You should always be sure to document throughout the process, keep receipts, take photos where applicable, etc. But once you have been harmed, you must take reasonable steps to try to prevent that harm from worsening.

We recommend that you contact an attorney right away to discuss your situation and options/requirements for mitigation. The duty of mitigation does not require you to move heaven and earth to stop spreading damage, but you must take reasonable steps along the way, or you run the risk of the person you sue claiming that the amount they owe you should be reduced based on your failure to adequately mitigate your damages.