Under Florida law, a party may have a duty to mitigate its damages in certain circumstances. “The doctrine of avoidable consequences, commonly referred to as a duty to mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer which the injured party ‘could have avoided without undue risk, burden, or humiliation.’” See Graphic Associates, Inc. v. Riviana Rest. Corp., 461 So.2d 1011, 1014 (Fla. 4th DCA 1984)(citation omitted). “The doctrine of avoidable consequences … commonly applies in contract and tort actions. … The doctrine does not permit damage reduction based on what ‘could have been avoided’ through Herculean efforts. Rather, the injured party is only accountable for those hypothetical ameliorative actions that could have been accomplished through ‘ordinary and reasonable care’ without requiring undue effort or expense.” See Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967, 982 (Fla. 2009) (internal citations omitted). By way of example, if the mitigation defense may be raised in a breach of contract case, the jury may be read the following instructions:

If the defendant breached the contract and the breach caused damages, the plaintiff is not entitled to recover for those damages which the defendant proves the plaintiff could have avoided with reasonable efforts or expenditures. You should consider the reasonableness of the plaintiff’s efforts in light of the circumstances facing the plaintiff at the time, including the plaintiff’s ability to make the efforts or expenditures without undue risk, burden, or humiliation.

If the plaintiff made reasonable efforts to avoid the damages caused by the breach, then your award should include reasonable amounts that the plaintiff spent for this purpose.

Please contact Joel Ewusiak for legal assistance with your specific matter.