Duty to mitigate may not recover any damages which

DUTY to mitigate → may NOT recover any damages which could have been reasonably
avoided, esp. if P had sought adequate medical care (doctrine of avoidable consequences)
i. Contract to reduce moral hazard (people will just try not to get better so they can get
more $)
ii. Zimmerman v. Ausland- injured in car accident; can’t exercise anymore; refused surgery
which would’ve made the injury non-permanent
1. can’t claim permanent injury damages if the permanent injury could have been
avoided by submitting to treatment by a physician when a reasonable person
would do so under the same circumstances
2. Standard → whether an ordinary, prudent person would have submitted to a
surgical operation
3. Factors → risk involved/probability of success/expenditure of money/effort
required
iii. Religious beliefs → if failure to undergo treatment is caused by P’s religious beliefs, some
courts won’t admit evidence of those beliefs while others permit the jury to consider it in
determining reasonableness
1. Is that a reasonable refusal to mitigate damages? Majority → courts don’t like
punishing people for exercising religious beliefs
iv. Comparative negligence states “don’t apply the rule” and instead treats failure to
mitigate as a fault reduces but does not eliminate recovery
B. Physical Harm to Property
a. Determination of value → market value at the time and place where the property was injured
i. Completely destroyed → damages are its entire value at the time/place of the tort
ii. Damaged but not destroyed → damages are difference in value before/after injury (cost
of repairing the land is also admissible here)

Anne Burley
Prof. Partlett, Fall 2021 Torts Outline
46
iii. Deprivation → damages are the value of the use of which P has been deprived (rental
value is admissible here)
b. If property has personal value, consider relevant factors (original cost, use, condition, etc.)
c. For pets → not really allowed emotional distress/loss of consortium here
C.
Punitive
→ additional sum, over and above the compensation of P to punish D, admonish D not to do it
again, and deter others from following D’s example.
a. Use punitive damages because compensatory damages might not be enough to bring a suit but
for cases like Mathias (bed bugs, it would be a public benefit to deter D from continuing to
commit the wrongful act and may be retribution)
b. REQUIREMENTS
i. Intentional torts → must be outrageous behavior
ii. Negligence → must go far beyond negligence; must be reckless or arrogant disregard for
P’s rights, or willful and wanton
iii. To get punitive damages → must first be a viable claim for compensatory damages
(may be sufficient if P proves the elements of her underlying cause of action, even if the
jury doesn’t award compensatory damages)
iv. States can portion some punitives to the state and NOT TO P → Cheatham- nude
photos; in Indiana; P only gets 25% of punitive damages; transferring the rest to the state
is not taking property because no right to punitive damages)
v. Award must be reasonable and proportionate to the amount of harm and general
damages
1. If it’s grossly excessive → violates due process ( Ex. State Farm v. Campbell ) →
stupidly excessive punitive damages; 1:145 ratio; court wrongly awarded punitive
damages for State Farm’s nationwide operations rather than for conduct directed
against D)
2.