WPI 33.03 Avoidable Consequences—Property or Business
6 WAPRAC WPI 33.03Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 33.03 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part IV. Damages
Chapter 33. Damages—Mitigation—Avoidable Consequences
WPI 33.03 Avoidable Consequences—Property or Business
A person who is liable for damages to another person's [property] [business] is not liable for any damages arising after the original [injury] [event] that are proximately caused by failure of the injured person to exercise ordinary care to avoid or minimize such new or increased damages.
(Insert name of applicable party)has the burden to prove(insert name of other party)'s failure to exercise ordinary care and the amount of damages, if any, that would have been minimized or avoided.
NOTE ON USE
Use this instruction only if there is evidence of failure to use ordinary care to minimize existing damage or to prevent further damage. Use bracketed material as applicable.
COMMENT
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 legal principles involved when there is damage to property or business are considered in Smith v. King, 106 Wn.2d 443, 450–52, 722 P.2d 796 (1986); Ward v. Painters' Local Union No. 300, 45 Wn.2d 533, 542–43, 276 P.2d 576 (1954); Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 435–36, 842 P.2d 1047 (1993); Harper & Assocs. v. Printers, Inc., 46 Wn.App. 417, 423–24, 730 P.2d 733 (1986).
The duty to mitigate damages applies in an action for damages under the Consumer Protection Act, RCW Chapter 19.86. The defendant has the burden of showing that the plaintiff had available alternatives that would have allowed a mitigation of damages. Young v. Whidbey Island Bd. of Realtors, 96 Wn.2d 729, 734, 638 P.2d 1235 (1982).
For additional discussion see the Comments accompanying WPI 33.01 (Avoidable Consequences—Personal Injury—Generally) and WPI 33.02 (Avoidable Consequences—Failure to Secure Treatment).
[Current as of April 2021.]
Westlaw. © 2022 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
| End of Document |