GA Code § 13-6-5 (2021)
2021 Georgia Code|Title 13 - Contracts|Chapter 6 - Damages and Costs Generally|§ 13-6-5. Duty of Injured Party to Lessen Damages Resulting From Breach

 Where by a breach of contract a party is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.   (Civil Code 1895, § 3802; Civil Code 1910, § 4398; Code 1933, § 20-1410.)   Law reviews.   - For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006).   JUDICIAL DECISIONS    Plaintiff in an action is obligated to take reasonable steps to minimize plaintiff's damages, if any, from a breach of contract. Kingston Pencil Corp. v. Jordan, 115 Ga. App. 333, 154 S.E.2d 650 (1967).    Trial court stated that even if the court had found that a school breached a teacher's employment contract, the teacher's ability to recover the compensatory damages that the teacher sought would have been affected by the teacher's failure to accept the job offered by the school, which continued the salary and benefits under the teacher's original contract. Zhou v. LaGrange Acad. Inc., 266 Ga. App. 445, 597 S.E.2d 522 (2004).    Although a school system did not send a timely non-renewal notice under O.C.G.A. § 20-2-942(b)(2), the teacher knew that the basis for the notice was the teacher's unexcused absences; because the teacher did not mitigate damages and the school system was stubbornly litigious, lost wages and attorney's fees (at the agreed-upon rate) were proper under O.C.G.A. §§ 13-6-5 and13-6-11. Boone v. Atlanta Indep. Sch. Sys., 275 Ga. App. 131, 619 S.E.2d 708 (2005).    When a bank was liable to the beneficiaries of a trust for breach of contract for not investing the trust's assets in treasury bills, the beneficiaries had a duty to mitigate the beneficiaries' damages, and the beneficiaries' delay in notifying the bank that the trust's settlor had died, and in probating the estate, causing the trust to be liable for past due estate taxes, reduced the damages the beneficiaries were entitled to because an "absolute promise to pay," which was exempt from mitigation, was not involved. Wachovia Bank of Ga., N.A. v. Namik, 275 Ga. App. 229, 620 S.E.2d 470 (2005).    Under O.C.G.A. § 13-6-5, a student had to mitigate the damages sustained due to a college's failure to follow procedure before expelling the student; thus, the student's damages for breach of contract under O.C.G.A. § 13-6-2 were limited to the lost wages for the additional time needed to obtain a degree, the tuition costs of classes the student had to repeat, and a refund of one semester's tuition. Morehouse College, Inc. v. McGaha, 277 Ga. App. 529, 627 S.E.2d 39 (2005).   Plaintiff must use ordinary care to prevent foreseeable damage in event of breach.    - If there was a breach of implied warranty that incubator was merchantable and reasonably suited to use intended by reason of a latent defect which might reasonably be expected to endanger safety of eggs therein, then if such defect became known to plaintiff, the plaintiff was bound to exercise reasonable care and diligence to lessen the damage which might result therefrom; the duty imposed on the plaintiff was to use ordinary care to prevent foreseeable damage. Henley v. Sears-Roebuck & Co., 84 Ga. App. 723, 67 S.E.2d 171 (1951).    Law applies only if damages can be lessened by reasonable efforts and expense. Reid v. Whisenant, 161 Ga. 503, 131 S.E. 904, 44 A.L.R. 599 (1926).    What constitutes ordinary care in mitigating damages see Atlanta Oil & Fertilizer Co. v. Phosphate Mining Co., 25 Ga. App. 430, 103 S.E. 873 (1920).   Genuine issue existed whether plaintiff mitigated.    - Plaintiff was not entitled to summary judgment regarding the amount of damages owed as to a breach of contract as genuine issues of material fact existed as to whether plaintiff reasonably mitigated damages, O.C.G.A. § 13-6-5; inter alia, one defendant raised questions regarding costs incurred to plaintiff in moving equipment and the valuation of that equipment. GE Capital Corp. v. Nucor Drilling, Inc., 551 F. Supp. 2d 1375 (M.D. Ga. 2008).   Mitigation defense should not have barred directed verdict.    - Trial court erred by failing to grant a directed verdict in favor of a bank against the defendant borrowers and guarantors because the defense of failure to mitigate damages was not a bar to a directed verdict in favor of the bank since the guarantees were absolute and unconditional; thus, liability was unaffected by any action by the bank that could have made the promissory note unenforceable. Ameris Bank v. Alliance Inv. & Mgmt. Co., LLC, 321 Ga. App. 228, 739 S.E.2d 481 (2013).    Application to damages resulting from breach of implied warranty. Henley v. Sears-Roebuck & Co., 84 Ga. App. 723, 67 S.E.2d 171 (1951).   Lease contracts.    - Unlike some jurisdictions, Georgia does not require mitigation of damages in lease contracts. Lamb v. Decatur Fed. Sav. & Loan Ass'n, 201 Ga. App. 583, 411 S.E.2d 527 (1991).    Because evidence was presented that a commercial lessee successfully terminated its lease only because the lessee was forced out of business when the lessor refused to pay for stone the lessor received from the lessee, the trial court properly held that the lessor was required to mitigate the lessor's damages. Allen v. Harkness Stone Co., 271 Ga. App. 397, 609 S.E.2d 647 (2004).    After obtaining consent from the probate court to sell construction equipment an executrix's decedent secured with a promissory note, the executrix was entitled to summary judgment as to the tort claims alleged against the decedent's corporation, after the corporation wrongfully retained possession of the equipment, converted two certificates of deposit, and the decedent's liability on the notes was extinguished under a provision of a stock sales agreement; furthermore, evidence was presented that the corporation's failure to release the equipment prevented the equipment's sale to third parties and thereby constituted a breach of a duty to mitigate damages. Midway R.R. Constr. Co. v. Beck, 281 Ga. App. 412, 636 S.E.2d 110 (2006).    Landlord for a commercial lease for space in a shopping center was not required to mitigate the landlord's damages by attempting to re-let the premises because the landlord did not accept the tenant's attempted surrender of the premises when the tenant turned in the keys, but rather, the record showed that the tenant abandoned the premises. Sirdah v. N. Springs Assocs., LLLP, 304 Ga. App. 348, 696 S.E.2d 391 (2010).   Tenant must protect tenant's goods from damage, despite landlord's failure to repair premises.    - Tenant is not excused from protecting tenant's goods from rain, even though landlord had failed to repair burned roof, after notice. Nicholas v. Tanner, 117 Ga. 223, 43 S.E. 489 (1903). See Aikin v. Perry, 119 Ga. 263, 46 S.E. 93 (1903).    Duty to mitigate damages arose when property was erroneously attached. Maxwell v. Speth, 9 Ga. App. 745, 72 S.E. 292 (1911).    Duty to mitigate damages arose when party accepted repudiation of executory contract. Phosphate Mining Co. v. Atlanta Oil & Fertilizer Co., 20 Ga. App. 660, 93 S.E. 532 (1917), later appeal, 23 Ga. App. 338, 98 S.E. 232 (1919); 25 Ga. App. 430, 103 S.E. 873 (1920); Mendel v. Converse & Co., 30 Ga. App. 549, 118 S.E. 586 (1923).    Law is inapplicable to suit for breach of warranty of title to real estate, and imposes no duty on plaintiff to settle suit. Parker v. Cramton, 143 Ga. 421, 85 S.E. 338 (1915).   No impact on severance package for failure to mitigate damages.    - Trial court properly refused to reduce the judgment in a breach of an employment contract case based on any failure by a former employee to mitigate damages under O.C.G.A. § 13-6-5 because the former employee's right to severance pay under the contract was absolute and thus the former employee's right to this pay was unaffected by earnings which the former employee made or should have made after being suspended. Ins. Indus. Consultants, LLC v. Alford, 294 Ga. App. 747, 669 S.E.2d 724 (2008), cert. denied, No. S09C0465, 2009 Ga. LEXIS 200 (Ga. 2009).    Expenses incurred in protecting property from damage due to breach were recoverable under former Civil Code 1910, § 4402 (see O.C.G.A. § 13-6-9). McNaughton v. Stephens, 8 Ga. App. 545, 70 S.E. 61 (1911).    Expenses incurred in protecting property may be pleaded in recoupment. Bernhardt v. Federal Terra Cotta Co., 24 Ga. App. 635, 101 S.E. 588 (1919).    Plaintiff need not allege plaintiff's efforts to mitigate damages when correct measure sued for. Southern Upholstering Co. v. Lieberman, 27 Ga. App. 703, 109 S.E. 509 (1921).    Provisions of this section can be invoked only by way of defense, and it is not necessary that petition negative failure of plaintiff to mitigate damages caused by defendant. Norris v. Johnson, 209 Ga. 293, 71 S.E.2d 540 (1952) (see O.C.G.A. § 13-6-5).    Defendant bears burden of alleging and proving plaintiff's failure to mitigate damages. Mimms v. Betts Co., 9 Ga. App. 718, 72 S.E. 271 (1911), later appeal, 14 Ga. App. 786, 82 S.E. 474 (1914).   No duty.   - Because the notes and guarantees at issue appeared to be absolute promises to pay, the court found no abuse of discretion in the district court's striking of the company's failure to mitigate defense. Branch Banking & Trust Co. v. Lichty Bros. Constr., Inc., 488 Fed. Appx. 430 (11th Cir. 2012)(Unpublished).   Evidence must enable jury to reasonably estimate amount by which damages could have been mitigated.    - Contention that one has failed to comply with duty to mitigate damages must be supported by evidence from which jury could reasonably estimate amount by which damages could have been mitigated. Considine Co. v. Turner Communications Corp., 155 Ga. App. 911, 273 S.E.2d 652 (1980).   Bank holding pledged certificates of deposit.    - O.C.G.A. § 13-6-5 did not require a bank to hold pledged certificates of deposit until maturity when the principal plus added interest would have satisfied the amount due on delinquent promissory notes. Willis v. National Bank, 176 Ga. App. 15, 334 S.E.2d 917 (1985).   No duty to mitigate damages of auto dealership.    - Under the parties' contract, a car dealer expressly promised to repurchase a loan bought by a bank if a car buyer's identity was fraudulent, and the dealership expressly waived any right to require the bank to redeem, repossess, or return the car in such a case. Thus, when the bank discovered that a car purchased by a buyer with a fraudulent identity had been impounded, the bank did not owe the dealer a duty to mitigate the dealer's damages under O.C.G.A. § 13-6-5 by providing better notice to the dealer of the impoundment or by paying the impound fee and gaining possession of the car. Cleveland Motor Cars, Inc. v. Bank of Am., N.A., 295 Ga. App. 100, 670 S.E.2d 892 (2008).   Plaintiff city had no duty to mitigate damages from a breach of contract by defendant county by challenging the county's tax refund obligation to a public utility.    - Summary judgment for a city for $2,885,827 damages was proper on the city's claim against a county for breach of an agreement under which the county was required to collect the city's taxes and remit them to the city, but instead the county withheld $2,885,827 for an obligation owed by the county. The rule of mitigation, O.C.G.A. § 13-6-5, did not require the city to challenge the obligation owed by the county to refund taxes to a public utility under a settlement agreement to which the city was not a party. Ferdinand v. City of E. Point, 301 Ga. App. 333, 687 S.E.2d 617 (2009).   Negligence instruction properly refused.    - Plaintiff's duty of care in a negligence action is inapplicable to a breach of contract action; an allegation of "negligent breach of contract" is founded upon a particular contractual duty which a defendant owes regardless of the plaintiff's actions. Thus, the trial court did not err in refusing to charge the jury on principles of comparative negligence as to the count for breach of contract. Deloitte, Haskins & Sells v. Green, 198 Ga. App. 849, 403 S.E.2d 818, cert. denied, 198 Ga. App. 897, 403 S.E.2d 818 (1991).    Cited in Mansfield v. Richardson, 118 Ga. 250, 45 S.E. 269 (1903); Brown v. Georgia C. & N. Ry., 119 Ga. 88, 46 S.E. 71 (1903); Georgia C. & N. Ry. v. Brown, 120 Ga. 380, 47 S.E. 942 (1904); Holbrook v. Town of Norcross, 121 Ga. 319, 48 S.E. 922 (1904); Southern Ry. v. Cunningham, 123 Ga. 90, 50 S.E. 979 (1905); Western Union Tel. Co. v. Truitt, 5 Ga. App. 809, 63 S.E. 934 (1909); Price v. High Shoals Mfg. Co., 132 Ga. 246, 64 S.E. 87, 22 L.R.A. (n.s.) 684 (1909); Hardwood Lumber Co. v. Adam & Steinbrugge, 134 Ga. 821, 68 S.E. 725, 32 L.R.A. (n.s.) 192 (1910); Central of Ga. Ry. v. White, 135 Ga. 524, 69 S.E. 818 (1910); Farkas v. S. Cohn & Son, 19 Ga. App. 472, 91 S.E. 892 (1917); Pelham Phosphate Co. v. Daniels, 21 Ga. App. 547, 94 S.E. 846 (1918); Garcia S. en C. v. Taggart Coal Co., 27 Ga. App. 204, 108 S.E. 72 (1921); Pelham & H.R.R. v. Walker, 27 Ga. App. 398, 108 S.E. 814 (1921); Kirkland v. Luke, 30 Ga. App. 203, 117 S.E. 259 (1923); Pullman Co. v. Strang, 35 Ga. App. 59, 132 S.E. 399 (1926); Western & Atl. R.R. v. Townsend, 35 Ga. App. 70, 135 S.E. 439 (1926); Evans v. Central of Ga. Ry., 38 Ga. App. 146, 142 S.E. 909 (1928); Georgia Power & Light Co. v. Fruit Growers Express Co., 55 Ga. App. 520, 190 S.E. 669 (1937); Speed Oil Co. v. Griffin, 73 Ga. App. 242, 36 S.E.2d 205 (1945); Albany Fed. Sav. & Loan Ass'n v. Henderson, 200 Ga. 79, 36 S.E.2d 330 (1945); Smith v. Hightower, 80 Ga. App. 293, 55 S.E.2d 872 (1949); Borochoff v. Breman, 85 Ga. App. 256, 68 S.E.2d 915 (1952); Exchange Ins. Ass'n v. Mathews, 93 Ga. App. 470, 92 S.E.2d 121 (1956); De Fore v. United States, 145 F. Supp. 484 (M.D. Ga. 1956); Davidson v. Consolidated Quarries Corp., 99 Ga. App. 359, 108 S.E.2d 495 (1959); Kohlmeyer v. Lightfoot, 118 Ga. App. 783, 165 S.E.2d 432 (1968); Security Dev. & Inv. Co. v. Ben O'Callaghan Co., 125 Ga. App. 526, 188 S.E.2d 238 (1972); Crown Constr. Co. v. Opelika Mfg. Corp., 343 F. Supp. 1266 (N.D. Ga. 1972); Tillem v. Petzelt, 139 Ga. App. 555, 229 S.E.2d 28 (1976); Community Fed. Sav. & Loan Ass'n v. Foster Developers, Inc., 179 Ga. App. 861, 348 S.E.2d 326 (1986); Western Host Atlanta, Inc. v. Bass, 183 Ga. App. 160, 358 S.E.2d 312 (1987); Esquire Carpet Mills, Inc. v. Kennesaw Transp., Inc., 186 Ga. App. 367, 367 S.E.2d 569 (1988); Hinesville Bank v. Pony Express Courier Corp., 868 F.2d 1532 (11th Cir. 1989); Leventhal v. Seiter, 208 Ga. App. 158, 430 S.E.2d 378 (1993); Gram Corp. v. Wilkinson, 210 Ga. App. 680, 437 S.E.2d 341 (1993); Harvey v. J.H. Harvey Co., 256 Ga. App. 333, 568 S.E.2d 553 (2002); Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 724 S.E.2d 33 (2012).   RESEARCH REFERENCES   Am. Jur. 2d.   - 22 Am. Jur. 2d, Damages, § 168 et seq.   C.J.S.   - 25 C.J.S., Damages, §§ 26, 47, 49 et seq., 167 et seq.   ALR.    - Contracts within the rule which requires one to use reasonable effort to obtain other employment in order to minimize damages from breach of contract, 15 A.L.R. 751.    Loss of anticipated profits as damages for breach of seller's contract as to machine for buyer's use, 32 A.L.R. 120.    Rights and remedies upon cancelation of sales agency, 32 A.L.R. 209; 52 A.L.R. 546; 89 A.L.R. 252.    Right of construction contractor to complete performance and claim contract price, notwithstanding unjustifiable repudiation of contract by other party, 66 A.L.R. 745.    Right of defendant to diminution of damages to real property on account of interest of plaintiff's cotenant who is not a party to the action, 80 A.L.R. 992.    Dealings between seller and buyer after latter's knowledge of former's fraud as waiver of claim for damages on account of fraud, 106 A.L.R. 172.    When landlord's reletting, or efforts to relet, after tenant's abandonment or refusal to enter, deemed to be acceptance of surrender, 110 A.L.R. 368.    Statutory liability for multiple damages, in event of tenant's failure to surrender possession, as affected by landlord's delay in ousting him, 134 A.L.R. 890.    Earnings or opportunity of earning from other sources as reducing claim of public officer or employee wrongfully excluded from his office or position, 150 A.L.R. 100.   Pleading mitigation of damages, or the like, in employee's action for breach of employment contract, 41 A.L.R.2d 955.   Measure of damages for lessor's breach of contract to lease or to put lessee in possession, 88 A.L.R.2d 1024.   Nature of alternative employment which employee must accept to minimize damages for wrongful discharge, 44 A.L.R.3d 629.   Seller's promises or attempts to repair article sold as affecting buyer's duty to minimize damages for breach of sale contract or of warranty, 66 A.L.R.3d 1162.   Measure and elements of damages for breach of contract to lend money, 4 A.L.R.4th 682.   Products liability: manufacturer's postsale obligation to modify, repair, or recall product, 47 A.L.R.5th 395.