Contributory Negligence and the Rule of Avoidable Losses.

It is often claimed that the rules of contributory negligence apply to unreasonable claimant conduct that occurs prior to or contemporaneously with the defendant’s wrong, whereas the rule of avoidable losses (failure to mitigate) applies to unreasonable claimant conduct that occurs after the defendant’s wrong. Others argue that this distinction is normatively indefensible, since both doctrines are concerned with whether the claimant acted unreasonably in his or her own interests, and that the consequences of such conduct ought therefore to be the same regardless of when it occurs relative to the defendant’s wrong. In this article, I demonstrate that both views are flawed, and that the preferable distinction rests simply on whether the claimant’s unreasonable conduct (i) contributes to the claimant’s damage (contributory negligence) or (ii) increases the indirect losses that flow from that damage (the rule of avoidable losses). [ABSTRACT FROM AUTHOR]