WPI 33.01 Avoidable Consequences—Personal Injury Generally

Use this instruction only if (1) there is evidence creating an issue of fact as to the injured person's failure to exercise ordinary care in minimizing or avoiding damages, and (2) the evidence permits a segregation of the damages resulting from that failure to exercise ordinary care.

Use bracketed material as applicable. Specific applications of this general instruction are found at WPI 33.02 (Avoidable Consequences—Failure to Secure Treatment) and WPI 33.03 (Avoidable Consequences—Property or Business).

RCW 4.22.005 and RCW 4.22.015.

RCW 4.22.005 provides that contributory fault proportionately diminishes the amount of a claimant's recovery. RCW 4.22.015 defines “fault” as including “unreasonable failure to avoid an injury or to mitigate damages.”

The duty to mitigate damages applies to a claim for lost earnings. Kubista v. Romaine, 87 Wn.2d 62, 68–69, 549 P.2d 491 (1976); Ward v. Painters' Local Union No. 300, 45 Wn.2d 533, 542, 276 P.2d 576 (1954).

One injured by the tort of another is not entitled to recover damages for any harm that the injured person could have avoided by use of reasonable effort or expenditure after the commission of the tort. Restatement (Second) of Torts § 918(1) (1979). However, a plaintiff's duty to mitigate damages has some limitation. A defendant who intends a particular harmful result or who is aware of the result and is recklessly indifferent to its happening, is required to pay damages for it, unless the injured person, realizing the danger, intentionally fails to act in the protection of his or her own interests or is heedlessly indifferent to them. Restatement (Second) of Torts § 918(2) (1979); see also Cobb v. Snohomish Cnty., 86 Wn.App. 223, 232, 935 P.2d 1384 (1997).

This pattern instruction has always been framed in terms of a prohibition against recovering damages for reasonably avoidable consequences, with the exceptions noted in the preceding paragraph. This formulation differs slightly from the language of the 1986 Tort Reform Act, which can be interpreted as meaning that a plaintiff's failure to mitigate damages is merely one factor to be balanced in the weighing of fault rather than a prohibition against recovery. See RCW 4.22.005; RCW 4.22.015. The WPI Committee has retained the common law formulation because the case law appears to follow this approach. See Cobb, 86 Wn.App. at 231. (“The doctrine of avoidable consequences, also known as mitigation of damages, prevents recovery for damages the injured party could have avoided through reasonable efforts.”); Cox v. Keg Rests. U.S., Inc., 86 Wn.App. 239, 244, 935 P.2d 1377 (1997) (“An injured party generally may not recover damages proximately caused by that person's unreasonable failure to mitigate.”).

The party asserting the claim of an unreasonable failure to mitigate damages bears the burden of proof. Kubista, 87 Wn.2d at 67 n.1; Cox, 86 Wn.App. at 244.

In Sutton v. Shufelberger, 31 Wn.App. 579, 582, 643 P.2d 920 (1982), the court approved the former version of WPI 33.01.

In Helmbreck v. McPhee, 15 Wn.App.2d 41, 476 P.3d 589 (2020), the court affirmed the trial court's giving of WPI 33.01, concluding there was substantial evidence that the plaintiff's actions after the car accident at issue aggravated his back injury.

For additional discussion, see the Comments accompanying WPI 33.02 (Avoidable Consequences—Failure to Secure Treatment) and WPI 33.03 (Avoidable Consequences—Property or Business).