4.5-14 Mitigation of Damages
Revised to January 1, 2008
The defendant has asserted
a defense that any damages awarded should be reduced [or eliminated]
for the plaintiff's failure to mitigate those damages. The
defendant claims that the plaintiff could have <insert claim>.
The plaintiff had a duty to exercise reasonable care to minimize the
damages resulting from any breach by the defendant. The plaintiff's
duty to exercise reasonable care to minimize damages does not
require the plaintiff to waive (his/her/its) rights under the
contract. It is the defendant's burden to prove by a preponderance
of the evidence that the plaintiff failed to exercise reasonable
care to minimize (his/her/its) damages. If you find that the
defendant has met this burden, you must reduce any award of damages
to the plaintiff by the amount that the defendant establishes that
the plaintiff reasonably could have avoided.