State v. Kalal, 2009 MT 103
As a matter of first impression, SCOMONT ruled that in assessing the issue of mitigation for damages in a criminal case, the test is:
What would a reasonable and prudent person be expected to do if capable, under the circumstances?
Kalal pled guilty to stealing a tractor from Petranek and was ordered to pay restitution for the value of the tractor and other items of stolen property (an obligation he fulfilled). Petranek sought additional restitution for loss of income in the amount of $21,724, his claim as follows:
(1) To build a two and one half mile fence between his ranch property and adjacent BLM land, which would allow his property to be leased for summer grazing. The ranch property is 75 miles from Petranek’s home. This resulted in a claim of $5,040 in lost income.
(2) To complete construction of a cabin which could be rented for 60 days a year for $6,000; further the cabin would facilitate leasing his property for hunting and fishing for some $5,764.
(3) To seed 120 acres for grass production and farming. This resulted in a claim of lost inclome of $4,920.
Kalal, ¶ 3. On cross-examination, Kalal’s attorney established that there were other tractors to rent, that the price of rental was $130-140 per day, and that Petranek would have needed 9 days to complete the fencing, 7-10 days for the cabin construction, and 20 hours for the seeding. Kalal contended that Petranek had a duty to mitigate his damages by renting a tractor for $3,080.
The District Court awarded Petranek damages of $15,960 (apparently rejecting the claim for the hunting lease). On appeal, SCOMONT decided that “given the impracticability and expense of renting and transporting a tractor a long distance for short periods of time, an award of $15,960 for Petranek’s loss of income was reasonable.” Kalal, ¶ 10.
