A claimant cannot sit still and let the loss grow. What they could reasonably have avoided is not recoverable.
Esshaki Legal Media TeamCurrent as of January 2025
An injured party may not recover damages it could have avoided by reasonable
effort without undue risk, burden or humiliation. It is not truly a duty — no
one is sued for failing to mitigate — but a limit on recovery.
The burden is on the breaching party to prove that reasonable steps existed
and were not taken, and to prove what they would have saved. That allocation
matters: a vague assertion that the plaintiff should have done better fails.
Reasonableness is judged as of the time, not with hindsight. A claimant who
chooses a reasonable course that turns out badly is still protected. One who
does nothing at all rarely is.
Common applications. A wrongfully terminated employee must look for
comparable work, though not lesser or distant work. A seller of rejected goods
must attempt resale. A landlord in most states must attempt to re-let. A buyer
denied delivery must consider cover.
Costs of mitigating are recoverable, including where the attempt fails, so
long as the attempt was reasonable. That is important: mitigation does not shift
the expense onto the victim.
Evidence discipline. Keep the record of the effort — applications sent,
brokers engaged, quotes obtained, dates. Mitigation is proved with documents,
and the party that kept them contemporaneously is far better placed than the one
reconstructing a search two years later.