Gregerson Rosow Johnson & Nilan

Homeowner’s Duty to Mitigate or Prevent Damages

Generally, a homeowner who is injured pursuant to the breach of a construction contract can seek both general and special damages. General damages are those that directly flow from the breach and special damages are those that, though not a direct consequence, are precipitated by the breach and can be characterized as “unique” to the homeowner in the given situation.

Based on fundamental fairness, the doctrine of mitigation or avoidable consequences places the duty on a homeowner to use reasonable care and diligence in avoiding further damages as a result of the breach. When obvious and reasonable steps can be taken to reduce damages, a homeowner is not allowed to stand idly by accumulating them. However, the homeowner’s duty to mitigate damages does not extend to the situation where the builder has an equal opportunity to limit the damages in addition to the knowledge that the consequences of his failure to act will increase the harm.

The burden of proof to show that the homeowner failed in his duty to mitigate damages is placed on the builder. However, even though the builder is successful in doing so, he is not absolved from the responsibility for all the damages flowing from the breach. Rather, he remains liable for those damages up to, but not including, the damages resulting from the homeowner’s failure to mitigate.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


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