CHAPTER 9 - 9-3 FAILURE TO MITIGATE DAMAGES

• Jurisdiction: United States

9-3 Failure to Mitigate Damages

A plaintiff's failure to mitigate damages is a valid defense to a malpractice action sounding in both negligence and breach of contract.⁷ The plaintiff has a duty to exercise reasonable care to minimize the damages resulting from any malpractice. The duty to mitigate damages, however, "does not require a party to sacrifice a substantial right of his own in order to minimize a loss."⁸ If the fact finder determines that the defendant has proven that the plaintiff has breached his duty to minimize his damages, the fact finder must reduce any award of damages to the plaintiff by the amount that the defendant establishes that the plaintiff reasonably could have avoided. This would often arise in the event there was an alternative remedy available to cure a mistake. If a case is dismissed due to mistake by the lawyer, the client may be able to cure that dismissal by filing a motion to set aside pursuant to statute.⁹

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Notes:

^[7] See Heritage Square Associates v. Blum, 1992 WL 175072 (Conn. Super. Ct. July 21, 1992); Mallen and Smith, Legal Malpractice, §§ 16.21, 17.2, 17.6 (3d ed. 2010). There is a split of authority within the Superior Court whether the duty to mitigate damages can be specially pled. Whalen v. Gathoni, 2010 WL 816995 (Conn. Super. Ct. Feb. 8, 2010).

^[8] Camp v. Cohn, 151 Conn. 623, 627...