Court Allows Undocumented Plaintiff To Pursue Negligence Action

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

COURT ALLOWS UNDOCUMENTED PLAINTIFF TO PURSUE NEGLIGENCE ACTION
Immigrants' Rights Update, Vol. 17, No. 2, June 3, 2003

A judge in a New York court has rejected Con Edison's attempt to have a negligence lawsuit brought against it by an undocumented worker dismissed. The company had asked the court to dismiss the lawsuit on the basis that the U.S. Supreme Court's decision in Hoffman Plastic Compounds v. NLRB precludes any award to the plaintiff because he lacks work authorization. (For a summary of the Hoffman decision, see "Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing," IMMIGRANTS' RIGHTS UPDATE, Apr. 12, 2002, p. 10).

The worker, Wilbert Cano, was injured when an electric meter owned by Con Edison exploded, causing him third degree burns and to lose time from work. Cano, who did not work for Con Edison, received worker's compensation from his employer and sued Con Edison for negligence.

The court rejected Con Edison's argument, holding that "[i]t is contrary to the public policy of New York State that a person who claims to be injured as a result of tortuous conduct may be barred from pursuing that claim in the courts of this State based upon the resident status of the claimant." The court noted that every case citing Hoffman has either distinguished itself from that case or has read the decision very narrowly. The court further held that the defendant could not, when addressing the issue of the plaintiff's pain and suffering, raise the fact before the jury that Cano is undocumented. Unfortunately, however, the court ruled that the defendant could present evidence of the plaintiff's immigration status when addressing his claim for lost wages.

This case again stresses the importance of educating workers about their rights under the Fifth Amendment, and particularly their right not to respond to questions concerning their immigration status. If they know that a plaintiff is undocumented, defendants in cases such as this regularly use this knowledge to attempt to deprive the plaintiff of a monetary remedy and to prejudice the jury against the plaintiff. In several post-Hoffman cases, advocates have convinced courts to limit discovery into plaintiffs' immigration status, and that logic should apply equally to tort cases. (For a discussion of some of these cases, see "Lower Courts Limit Impact of High Court's Decision Barring Undocumented Worker from Receiving Back Pay," IRU, May 30, 2002, p. 8, and "Courts Continue Rejecting Defendants' Post-Hoffman Inquiries into Plaintiffs' Immigration Status," IRU, Oct. 21, 2002, p. 10.) In this case, for example, the court noted that the plaintiff "concedes that he is not a citizen and that he cannot produce a resident alien identification card (green card)." Absent that admission, the jury likely would not hear any evidence of the plaintiff's immigration status.

Cano v. Mallory Management, 2003 N.Y. Misc. LEXIS 562 (April 10, 2003).