AMI 2230 Mitigation of Damages—Real and Personal Property

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2230

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 22. Damages

AMI 2230 Mitigation of Damages—Real and Personal Property

If it becomes necessary for you to assess the damage to the property of , then in fixing the amount of money which will reasonably and fairly compensate [him][her], you are to consider that a person whose [property][business] is damaged must use ordinary care [to minimize existing damages][and][to prevent further damages][and][to avoid damages].

The burden of proving [that a party claiming damages failed to use ordinary care (to minimize existing damages) (and) (to prevent further damages) (and) (to avoid damages)][and][the amount of damages that might have been avoided in the exercise of ordinary care] is upon the party from whom damages are claimed.

NOTE ON USE

This instruction should be given only when there is evidence that a party claiming property damage has failed to mitigate damages.

It should immediately follow the last paragraph of AMI 2222.

COMMENT

“The doctrine of avoidable consequences limits the amount of damages in that a party cannot recover damages resulting from consequences which he could reasonably have avoided by reasonable care, effort or expenditure.” Bill C. Harris Const. Co. v. Powers, 262 Ark. 96, 104–05, 554 S.W.2d 332, 336 (1977). The doctrine applies in both tort and contract cases. S. Bldg. Servs., Inc. v. City of Fort Smith, 2013 Ark. App. 306, at 10. “The burden of proving that a non-breaching party could have avoided some or all of the damages by acting prudently rests on the breaching party, not only on the question of causation of damages for failure to avoid harmful consequences, but also on the question of the amount of damage that might have been avoided.” Taylor v. George, 92 Ark. App. 264, 273, 212 S.W.3d 17, 24 (2005).

This instruction deals with physical damage to real or personal property and should follow AMI 2222 with the appropriate insert from AMI 2223 through 2229. Twin City Bank v. Isaacs, 283 Ark. 127, 132, 672 S.W.2d 651, 653 (1984).

The court correctly refused giving this instruction where the plaintiff was seeking lost profits, and not physical damage to property. Stacks v. Jones, 323 Ark. 643, 647, 916 S.W.2d 120, 122–23 (1996).

End of Document