Defendant Must Demonstrate the Availability of Suitable Work for Injured Employee
By Dave Wagner
In Marasa v. Alt. Sounding Co. No. 13-272-cv (2nd Cir. 2014) the plaintiff was injured while performing an anchor-handling procedure that neither he nor the other participating crewmembers had ever performed before the day of the injury. The Second Circuit found defendant’s vessel unseaworthy based on inadequate crew training. Although the ultimate holding in this case is not momentous; the court’s summary rejection of defendant’s mitigation defense may be noteworthy.
In its reply brief, the defendant cited Greenway v. Buffalo Hilton Hotel, 143 F.3d 47 (2d Cir. 1998) in support of its argument that the district court erred in determining that the plaintiff had mitigated his damages. In Greenway, the plaintiff successfully brought a Title VII action against his employer, but the court denied compensatory damages such as back pay, front pay or future medical insurance premiums because the defendant proved that plaintiff had not exercised a diligent job search.
The importance of Greenway is that the court made an exception to the usual rule that the defendant always has
the initial burden of demonstrating that suitable work actually exists before proving that
the plaintiff failed to use reasonable efforts to find such work. Put differently, if the defendant can prove that the plaintiff failed to use reasonable efforts to find employment then the defendant will not be liable for compensatory damages even in the absence of any proof that suitable employment was even available.
The court refused to apply Greenway for two reasons: First, the defendant failed to cite the case in its opening appellate brief, and second, the defendants offered no rationale as to why a Title VII case should be applied to a FELA or Jones Act claim. Although only dicta, the decision on this point seems to reaffirm the notion
that seamen are indeed ‘wards of the court.’
