Employer's Efforts to Find An Alternate Employment for An Injured Employee As Evidence for Mitigated His Damages
Is Evidence of Employer's Efforts to Find an Alternate Employment for an Injured Employee Relevant to the Issue Whether the Employee Mitigated His Damages ?
In Brown v. Chicago & North Western Transportation Co., 162 Ill. App. 3d 926, 932, 114 Ill. Dec. 165, 516 N.E.2d 320 (1987), the trial court refused to instruct the jury on plaintiff's duty to mitigate his damages and defendant appealed from an unfavorable jury verdict.
On appeal, plaintiff argued that the trial court properly refused to submit the mitigation instruction because defendant offered no evidence to support the instruction.
Plaintiff claimed that, following his injury, defendant did not communicate any available employment that plaintiff could perform in his physical condition or produce any evidence that its rehabilitation programs would have reduced plaintiff's damages. Brown, 162 Ill. App. 3d at 932.
Rejecting plaintiff's argument and finding the lack of a mitigation instruction was reversible error, the court noted the issue of plaintiff's failure to mitigate damages is a question of fact for the jury to resolve and, based on plaintiff's conduct, the jury could conclude that plaintiff was uncooperative in finding alternative employment and reduce his damages accordingly. Brown, 162 Ill. App. 3d at 932.
The court further noted:
"Though there was no evidence presented of other jobs available to him, North Western obviously was never given the opportunity to determine if it could place Brown in another position or educate or retrain him for new duties or responsibilities." Brown, 162 Ill. App. 3d at 933.
Thus, under FELA, evidence of an employer's efforts to find suitable employment and rehabilitation services for an injured employee is relevant to the issue of whether the employee mitigated his damages.