Where summary judgment had been granted against an undocumented immigrant from bringing a negligence claim against his employer, the state supreme court reversed that decision and held that the courts of the state are open to every person of the state regardless of whether they are “illegal aliens.”  The court below had relied upon case law holding that “if a plaintiff cannot open his case without showing that he has broken the law, a court will not aid him.” In concluding that this must not be applied in the instant case, the supreme court stated that unlike the cited case, the plaintiff’s conduct here was not the contributing cause of his alleged injury. The court went on to quote the state constitution that provides:

“All court shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay…. No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.” McKean v. Yates Engineering Corp., 200 So. 3d 431 (2016).

“Thus,” concluded the court, “the Mississippi Constitution does not limit access to our courts and leaves open for every person a remedy for injury done to his person.” The court went on to cite favorably case law from other states such as:

New Hampshire – “[A] well established body of law holds that illegal aliens have rights of access to the courts and are eligible to sue therein to enforce contracts and redress civil wrongs such as negligently inflicted personal injuries.”

New Jersey – “Surely, the effect on the worker of his injury has nothing to do with his citizenship or immigration status. If his capacity to work has been diminished, that disability will continue whether his future employment is in this country or elsewhere.”

Wisconsin – “It cannot be seriously argued that people enter this country illegally so they can recover for an injury that will be inflicted upon them later.”

New York – “Even the most hopeless outcast is entitled to protection against unlawful injury to his person.”

The court, quoted from a New Jersey decision that stated, “Potential employers may well be encouraged to employ such aliens if they become aware of the alien’s inability to lodge claims against them for wages or on account of injuries sustained.”


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 19, No. 4 (April 2017).

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