§23.13 Mitigation of Damages

The Case: Memphis Light, Gas & Water Division v. Starkey , 244 S.W.3d 344 (Tenn. Ct. App. 2007), perm. appeal denied, (Nov. 19, 2007).

The Basic Facts: This is a case involving wrongful interference with an easement. On appeal, the defendant raised the issue of whether the trial court erred in failing to consider whether the plaintiff mitigated its damages.

The Bottom Line:

• "The first issue presented in this appeal concerns the mitigation of damages. The doctrine of mitigation of damages dictates that,

  one who is injured by the wrongful or negligent act of another, whether by tort or breach of contract, is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage, and to the extent that damages are the result of his active and unreasonable enhancement thereof, or due to his failure to exercise such care and diligence, he cannot recover.

  Cook & Nichols, Inc. v. Peat, Marwick, Mitchell & Co. , 480 S.W.2d 542, 545 [(Tenn. Ct. App. 1971) ]. Thus, a party injured by the wrongful act of another is under a legal duty to use reasonable efforts to minimize the loss and, to the extent that the injured party fails to do so, he or she cannot recover. Id.; see also Kline v. Benefiel, No. W1999-00918-00A-R3-CV, 2001 WL 25750, at *7 [(Tenn. Ct. App. Jan.9, 2001)]. The injured party is not, however, required to mitigate damages where the duty would impose an undue burden or be impossible under the circumstances. See Kline, 2001 WL 25750, at *7 (citing Cummins v. Brodie , 667 S.W.2d 759, 766 (Tenn. Ct.App.1983) )." 244 S.W.3d at 353.

Other Sources of Note: Smith v. Gore , 728 S.W.2d 738 (Tenn. 1987) (holding plaintiff has no duty to mitigate damages in wrongful pregnancy case by considering alternatives to child rearing, such as abortion or adoption; observing that where plaintiff does choose to terminate the pregnancy, the cost of the abortion is a proper element of damages; further observing that some cases may justify consideration of plaintiff's struggle in deciding between the options of rearing the child, placing the child for adoption, or terminating the pregnancy in determining damages for emotional distress).

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