§ 19-30 Contract - Duty to Minimize Damages

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 19-30 Contract - Duty to Minimize Damages

If you find by a preponderance of the evidence that a contract existed between the plaintiff and the defendant, and that the defendant breached that contract, then you must decide whether the plaintiff took reasonable actions to reduce or minimize any damages he may have incurred. The duty to mitigate losses applies to contracts.

A party suffering damages has a duty to exercise reasonable care and diligence to minimize his damages. No recovery may be had for losses which the person injured might have prevented by reasonable efforts and expenditures. The injured party is required to do only that which would be reasonable. In other words, an injured party is required to do that which an ordinary prudent person would do under similar circumstances to mitigate his damages. However, the injured party is not required to unreasonably exert himself or incur substantial expense in an effort to mitigate damages.

Where no evidence is given that damages could reasonably have been reduced, the injured party is not required to have done more. Yet, a party will not be allowed to sit back and wait and then seek to recover damages for loss of use when reasonable attempts would have mitigated damages. There is no obligation to minimize avoidable damages where a party has a vested right to recover the full amount sought.

The burden of proving that damages could have been minimized rests on the party claiming that damages should have been reduced or avoided.

See Rathborne, Hair & Ridgway Co. v. Williams, 59 F. Supp. 1 (D.S.C. 1945); Collins Entm't Corp. v. Coats and Coats Rental Amusement, 368 S.C. 410, 629 S.E.2d 635 (2006) (the lost volume seller doctrine does not eliminate a seller's duty to mitigate his damages); U.S. Rubber Co. v. White Tire Co., 231 S.C. 84, 97 S.E.2d 403 (1956); Du Bose v. Bultman, 215 S.C. 468, 56 S.E.2d 95 (1949); Fewell v. Catawba Power Co., 102 S.C. 452, 86 S.E. 947 (1915)(one seeking to hold another liable for damages must use reasonable efforts to mitigate such damages); Cobb v. Western Union Tel. Co., 85 S.C. 430, 67 S.E. 549 (1910); Genovese v. Bergeron, 327 S.C. 567, 490 S.E.2d 608 (Ct. App. 1997); Cisson Constr., Inc. v. Reynolds & Assocs., Inc., 311 S.C. 499, 429 S.E.2d 847 (Ct. App. 1993)(reasonableness of party's actions to mitigate damages is

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