The IBJ ran an interesting AP story on the subject of the measure of damages for an injured Mexican worker who was in the United States illegally. When you are injured through the negligence of someone else, the goal is to provide compensatory damages (money) in an amount that “makes you whole.” In other words, try to give you money for what you lost through the other person’s negligence. Future earnings is one element of those compensatory damages. The question in this case is whether it is appropriate to measure those future earnings in terms of what the man could make if he remained in and worked in the U.S. The basic measure of damages for impairment of lost earning capacity is the difference between the amount the plaintiff was capable of earning before the injury and the amount which he was capable of earning thereafter.
I can see this going either way. Companies already have an incentive to look the other way in terms of a worker’s legal status. They can often pay these folks less. Ruling that they can also pay less for a workplace injury if the person happens to be here illegally would compound the incentive. (It also raises a question about whether the company should have to pay more if the person comes from a place with more generous compensation.)
On the other hand, it would be difficult for the Courts to permit a presumption that damages should be based on the idea that a person will continue to engage in and profit from illegal activity. If you negligently injure a drug dealer, should there lost income be based on the idea that they would have continued their lucrative meth enterprise?
The Court of Appeals may be able to avoid addressing this one head on because the plaintiff in question has, since the injury, apparently become married to a U.S. citizen and is able to be here legally now.