Mitigation of Damages required by plaintiff in breach of contract
If you find that the defendant [breached the contract*] and that damages resulted, you must also determine if the plaintiff has made reasonable efforts to lessen or reduce his/her damages.
The law requires that party who suffers injury or damage because of a [breach of contract*] to make a reasonable effort to avoid or minimize the loss by taking advantage of such reasonable business or employment opportunities he/she may have under the circumstances.
A party cannot recover damages for a loss that he/she could have avoided by reasonable efforts.
If you find that the plaintiff could have avoided or minimized his/her loss by taking advantage of a business or employment opportunity that was reasonably available under the circumstances, you must subtract from plaintiff’s award the damages which could have been avoided.
For example, an employee who claims to have lost earnings because he/she was wrongfully fired is free to work elsewhere. Any subsequent earnings that employee could reasonably have earned if he/she had taken advantage of an available employment opportunity must be subtracted from the damages he/she claims to have suffered as a result of his/her wrongful termination.
The burden of proof is on the defendant to show that the plaintiff could reasonably have avoided or minimized his/her damages. In the employment example,
* If the case is an employment case and there is no breach of contract involved, the words "breach of contract" and its variations should be replaced with "wrongful termination" as defined by this charge, or the appropriate variation. CHARGE 8.45 ― _Page 5 of 5
the defendant employer has the burden of showing the earnings the employee could reasonably have realized had the employee taken advantage of available substitute employment. If the defendant satisfied that burden, then you must reduce the amount of damages the employee would otherwise receive by the amount of the loss that the employee could reasonably have avoided.
Frank Stamato & Co. v. Borough of Lodi, 4 N.J. 14, 21 (1950); Sandler v. Lawn-Mat Chemical & Equipment Corp., 141 N.J. Super. 437, 455 (App. Div.), certif. denied, 71 N.J. 503 (1976); Harvard v. Bushberg Bros., 137 N.J. Super. 537, 542 (app. Div. 1975); Henry Clay v. Jersey City, 74 N.J. Super. 490 (Ch. Div. 1962), aff’d, 84 N.J. Super. 9 (App. Div. 1965). See also Restatement (Second) of Contracts §350, comments a, b and c (1979).