Defense of Avoidable Consequences to Property Damage

Defense of Avoidable Consequences to Property Damage

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There is an affirmative defense known as the doctrine of avoidable consequences that is often confused with the affirmative defense known as the duty to mitigate. Both defenses go to the damages a plaintiff is otherwise entitled to, and not really to liability.   The doctrine of avoidable consequences stands for the proposition that a party (plaintiff) cannot recover “those damages inflicted by a wrongdoer [defendant] that the injured party [plaintiff] could have reasonably avoided.” Penton Business Media Holdings, LLC v. Orange County, Florida, 43 Fla.L.Weekly D237c (Fla. 5th DCA 2018) quoting Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967, 982 (Fla. 2009).

The recent decision in Penton Business Media Holdings, LLC dealt with this issue. Here, a party entered into a lease agreement with Orange County, Florida to host a trade show at the Orange County Convention Center. Naturally, the party was responsible for damage caused to the Orange County Convention Center. One of the exhibitors at the trade show performed a pre-trade-show flame demonstration that resulted in the fire sprinklers to be set off. This resulted in significant water damage to the leased premises.   During the lawsuit the tenant asserted that Orange County failed to mitigate its damages because it failed to shut down the sprinkler system as soon as reasonably possible. This defense, however, was more properly labeled as the doctrine of avoidable consequences because the tenant was arguing that the County caused damages which it could have reasonable avoided had it shut down the fire sprinkler system immediately. Per the tenant, the County’s damages were created or exacerbated due to the County not shutting down its sprinkler system immediately and allowing the water to continue to damage its property.

Of course, no different than any affirmative defense, the burden is in the defendant—party asserting the defense—but this is a defense available to a property damage claim in furtherance of trying to reduce the amount of damages exposure.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.