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Duty to Mitigate

Legal obligation to minimize damages.

• A plaintiff seeking to recover damages has a duty to minimize or mitigate his damages and may not recover for damages which could have been avoided by reasonable efforts under the existing circumstances. Johnson v. Monsanto Co., 303 N.W.2d 86 (N.D. 1981)
• The rule which denies the plaintiff a recovery for harm that he might reasonably have avoided is referred to as the avoidable consequences rule. The reason for the rule is the policy of avoiding economic waste. Ibid

• The party injured by the breach of a contract must make every reasonable effort to minimize damages and may not recover for damages which could have been avoided by reasonable efforts under the existing circumstances..."The established rule is: 'Where two parties have made a contract, which one of them has broken, the other must make reasonable exertions to render his injury as light as possible; and he cannot recover from the party breaking the contract, damages which would have been avoided, had he performed such duty.'..."  These decisions stand for the proposition that the duty to mitigate or minimize damages arises after there has been a breach of contract. Atlas Ready-Mix of Minot, Inc. v. White Properties, Inc., 306 N.W.2d 212 (N.D. 1981)

• A plaintiff seeking to recover damages has a duty to minimize or mitigate his damages and may not recover for damages which could have been avoided by reasonable efforts under the existing circumstances... However, the duty of a plaintiff to mitigate damages is not applicable where the defendant, who by breach of contract has caused injury to the plaintiff, has equal knowledge and opportunity to minimize the damages by performing the contract as he has obligated himself to do:

  "The rule which requires a person injured by the wrongful act of another to exercise reasonable care to avoid loss or minimize the resulting damages and requiring a party to a contract, subject to injury for breach by the other party, to make reasonable efforts and exercise ordinary care and diligence to reduce the resulting damages, is not applicable where the party who has a duty to perform a contract has equal opportunity for performance and equal knowledge of the consequences of nonperformance, as he cannot be heard to say that the other party might have performed for him." Smith v. Watson, 406 N.W.2d 685 (N.D. 1987)

N.D.C.C. 32-03.2-01 ... "fault" includes ... failure ... to mitigate damages.

Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383

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