Willis v. Westerfield

OPINION ON REHEARING

VAIDIK, Judge.

On rehearing, the Willises raise three issues, one of which we find dispositive; namely, whether the trial court erred by instructing the jury on the affirmative de fense of failure to mitigate damages. Initially, we found no error in the trial court's decision to instruct the jury on the failure to mitigate defense. See Willis v. Westerfield, 803 N.E.2d 1147, 1155 (Ind.Ct.App.2004). Upon further reflection, we now reach the opposite conclusion.

The mitigation of damages doctrine is "the principle requiring a plaintiff, after an injury or breach of contract,…