WPI 303.06 Contract—Mitigation of Damages
6A WAPRAC WPI 303.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 303.06 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XIII. Contracts
Chapter 303. Contracts—Remedies
WPI 303.06 Contract—Mitigation of Damages
A plaintiff who sustains damage as a result of a defendant's breach of contract has a duty to minimize the loss suffered by plaintiff. The plaintiff is not entitled to recover for any part of the loss that plaintiff could have avoided with reasonable efforts. The defendant has the burden to prove the plaintiff's failure to use reasonable efforts to minimize the loss suffered by plaintiff, and the amount of damages that could have been minimized or avoided.
[The plaintiff may recover expenses connected with reasonable efforts to avoid loss.]
NOTE ON USE
Use this instruction in a contract case involving a claim of failure to mitigate damages. Compare WPI 33.01 (Avoidable Consequences—Personal Injury Generally). Use the last bracketed sentence when there is an evidentiary basis for awarding expenses of mitigation.
Party designations should be changed when appropriate to the case. Often, the best solution will be to insert the names of the parties instead of their designations.
COMMENT
Restatement (Second) of Contracts § 350 (1981), entitled “Avoidability as a Limitation on Damages,” provides:
- (1) Except as stated in Subsection (2), damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.
- (2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss.
See also Pub. Util. Dist. No. 2 of Pacific Cnty. v. Comcast of Wash. IV, Inc., 184 Wn.App. 24, 336 P.3d 65 (2014) (trial court properly denied reduction based on alleged failure to mitigate damages).
In appropriate cases, the pattern instruction may need to be modified to refer to the “undue risk, burden or humiliation” language from the Restatement (Second) of Contracts subsection (1), or to the “reasonable but unsuccessful efforts to avoid loss” language from the Restatement (Second) of Contracts subsection (2).
The party alleging that the damages should have been mitigated has the burden of proof on the issue. Pub. Util. Dist. No. 2, 184 Wn.App. 24; Robblee v. Robblee, 68 Wn.App. 69, 841 P.2d 1289 (1992).
The duty to mitigate will not arise, or may be suspended, if there is a basis for a reasonable belief by the injured party that the breaching party will perform. See cases involving repeated promises to perform, e.g., Sears, Roebuck & Co. v. Grant, 49 Wn.2d 123, 298 P.2d 497 (1956); Beeson Bros. v. Chambers, 155 Wash. 564, 285 P. 433 (1930).
The injured party is entitled to recover expenses associated with reasonable efforts to mitigate damages. Family Med. Bldg., Inc., v. Dep't of Soc. & Health Servs., 104 Wn.2d 105, 702 P.2d 459 (1985) (landlord's expenses of remodeling specialized premises in order to relet); City of Puyallup v. Hogan, 168 Wn.App. 406, 277 P.3d 49 (2012) (trial court properly rejected landlord's defense of failure to mitigate based on tenant's declining to renew lease after condemnation).
For a detailed discussion of damages issues, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice ch. 14 (3d ed.).
[Current as of April 2021.]
Westlaw. © 2022 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
| End of Document |