§ 147.123.Mitigation of Damages

A jury instruction provision closing the chapter, and it covers both possibilities.

Subsection (a): in an action to which the proportionate responsibility chapter applies, the court shall instruct the finder of fact on the determination of responsibility using the appropriate approved pattern jury charge, which the court may modify as appropriate.

Subsection (b): in all other actions, the court shall instruct on the claimant’s duty to mitigate or avoid damages, in a manner appropriate to the action, again using the approved pattern charge with modification permitted.

Between them the two subsections cover every case, which is the point — the chapter reaches claims in tort, contract and warranty alike, and proportionate responsibility does not apply to all of them.

The subject is the claimant’s own conduct, and that was a live issue here in a way it usually is not. Date failure was publicised for years in advance, remediation was widely available, and a business that ignored it contributed to its own loss.

Where the proportionate responsibility chapter applies, that conduct reduces recovery by percentage — and bars it entirely above 50 percent. Where it does not, mitigation performs a similar function through a different mechanism.

Referring to the pattern jury charges is unusual in a statute. Those are State Bar publications, persuasive rather than binding, and directing their use gives them a statutory footing they do not otherwise have.

The permission to modify keeps the direction workable, since no pattern charge was written for this chapter.