Failure to mitigate can be useful tool in attacking damages

For the Defense

By Donald P. Eckler

Donald “Pat” Eckler is a partner at Pretzel & Stouffer focusing on professional liability defense, insurance coverage litigation, and general tort defense. He is the legislative chair of the Illinois Association of Defense Trial Counsel. His views are his own and not those of his firm or its clients.

Posted October 14, 2020 12:15 PM

As has been written in this space previously, the purpose of tort law is to place the plaintiff back in the position they would have been but for the conduct of the defendant. The principle extends to a whole range of cases, and two recent decisions, Mayster v. Santacruz, 2020 IL (2d) 190840, in the business dispute context, and Humphrey v. Tuck, 2020 Ind. LEXIS 701, in the personal injury context, illustrate the point.Often incorrectly described as a “duty” to mitigate, the law actually is that “the law does not assess …

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