M Civ JI 53.05 Mitigation of Damages - Failure to Exercise Ordinary Care

A person has a duty to use ordinary care to minimize his or her damages after [ he or she / his or her property ] has been [ injured / damaged ]. It is for you to decide whether plaintiff failed to use such ordinary care and, if so, whether any damage resulted from such failure. You must not compensate the plaintiff for any portion of [ his / her ] damages which resulted from [ his / her ] failure to use such care.

Note on Use

This instruction should not be given unless there is evidence creating an issue as to whether plaintiff failed to use ordinary care to minimize his or her injury or damage.

Comment

Michigan law recognizes there is a duty of ordinary care to mitigate either personal or property damage. See Zibbell v Grand Rapids, 129 Mich 659, 661; 89 NW 563, 564 (1902) (personal injury); Sullivan v Pittsburgh Steamship Co, 230 Mich 414, 422; 203 NW 126, 128 (1925) (property damage).

The duty to minimize damages may include a duty to seek and follow medical treatment, including surgery, which does not involve danger to life or extraordinary suffering. Poikanen v Thomas Furnace Co, 226 Mich 614; 198 NW 252 (1924); Beauerle v Michigan Central R Co, 152 Mich 345; 116 NW 424 (1908); Kolbas v American Boston Mining Co, 275 Mich 616; 267 NW 751 (1936); Anno: Duty of injured person to minimize tort damages by medical or surgical treatment, 48 ALR2d 346.

History

M Civ JI 53.05 was SJI 35.01.