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.
Cases:
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).
