Chapter 15-3 Failure to Mitigate

• Jurisdiction: United States

15-3 Failure to Mitigate

The plaintiff has a duty to mitigate, or minimize, its damages.¹⁶ The plaintiff is required to use reasonable care in minimizing its damages and if the plaintiff fails to do so, it cannot recover the damages that could have been avoided.¹⁷ The duty to mitigate damages arises in contract and tort actions and the purpose of this duty is to "discourage people from wasting their resources, both physical and economic."¹⁸

Failure to Mitigate is typically considered an affirmative defense; however, the Texas Supreme Court has recognized an exception to this approach in personal injury litigation.¹⁹ See Chapter 12, Section 12-1.

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Notes:

^[16] See Great Am. Ins. v. N. Austin MUD, 908 S.W.2d 415, 426 (Tex. 1995).

^[17] See Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 857 (Tex. 1999); Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d 14, 15 (Tex. App.—Austin 1990, no writ).

^[18] Pulaski Bank & Tr. Co. v. Tex. Am. Bank, 759 S.W.2d 723, 735 (Tex. App.—Dallas 1988, writ denied).

^[19] Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 448 (Tex. 1967).