R.R. Donnelley & Sons Co. v. Vanguard Transp. Sys. - 641 F. Supp. 2d 707 (N.D. Ill. 2009)

Rule:

The victim of the breach must exercise reasonable diligence and ordinary care in attempting to minimize the damages after injury has been inflicted. And while he must act with reasonable dispatch, the injured party is not required to take steps that involve undue risk or burden. But there are instances where the victim of the breach might be lulled by the breaching party into inaction because of assurances that all will be well. To put this differently, the breaching party may not insist on mitigation when by its words or deeds it has led the non-breaching party to believe that it has assumed what would otherwise be the buyer's burden of mitigation. While that is going on, the duty to mitigate is suspended.

Facts:

Plaintiff R.R. Donnelley & Sons Co. filed a suit against defendant Vanguard Transportation Systems, Inc. alleging breach of contract. The case arose from an admittedly delayed delivery by defendant of advertising brochures announcing a post-Christmas sale. The brochures were delivered to plaintiff's distribution center on December 27, 2005 -- eleven days after the promised date of delivery. Defendant admitted that the delivery did not occur until December 27, but claimed plaintiff caused the problem by refusing to let defendant's driver unload the truck. Plaintiff claimed that it could and would have mitigated its damages by retaining a local cartage company to deliver the load if only defendant had told the truth about not having a driver to redeliver the load and not having misled it on a daily basis.

Issue:

Under the circumstances, did the plaintiff fail to mitigate its damages from defendant’s breach?

Answer:

Yes.

Conclusion:

The court found that beyond pointing out how easy it would have been for defendant to have rented a truck from a local company and delivered the brochures, plaintiff's post trial briefs had effectively nothing to say about its own duty to mitigate damages. The court also found that because plaintiff chose to do nothing, as it had the right to do, the avoidable loss of more than $ 80,000 could not be taxed to defendant. Finally, the court found that plaintiff was not entitled to damages or to attorney's fees.