Salas v. Erectors

• Decision Date: 15 April 2010
• Docket Number: No. 81590-9.,81590-9.
• Parties: Alex SALAS, a single person, Petitioner,v.HI-TECH ERECTORS, a Washington corporation, Respondent.
• Court: Washington Supreme Court

168 Wash.2d 664

230 P.3d 583

Alex SALAS, a single person, Petitioner,v.HI-TECH ERECTORS, a Washington corporation, Respondent.

No. 81590-9.

Supreme Court of Washington,

En Banc.

Argued Nov. 16, 2009.

Decided April 15, 2010.

Robert B. Kornfeld, Kornfeld Trudell Bowen & Lingenbrink, P.L.L.C., Kirkland, WA, Charles Kenneth Wiggins, Wiggins & Masters, P.L.L.C., Bainbridge Island, WA, for Petitioner.

Matthew Taylor Boyle, Mitchell, Lang & Smith, Thomas A. Heinrich, Attorney at Law, Seattle, WA, for Respondent.

Sarah A. Dunne, Nancy Lynn Talner, ACLU, Jeffrey Lowell Needle, Seattle, WA, Amicus Counsel for American Civil Liberties Union of Washington and Washington Employment Lawyers Association.

Joachim Morrison, Attorney at Law, Wenatchee, WA, Amicus Curiae on behalf of Centro de Ayuda solidaria a los Amigos (CASA) Latina.

Maria Lorena Gonzalez, Schroeter Goldmark & Bender, Seattle, WA, Amicus Curiae on behalf of Latino Bar Association of Washington.

Sean M. Phelan, Frank, Freed, Subit & Thomas, Lori K. Rath, Rath Law & Mediation, P.L.L.C., Sara Lyle Ainsworth, Legal Voice, Seattle, WA, Amicus Curiae on behalf of Legal Voice.

Matthew Hyrum Adams, NW Immigrants Rights Project, Seattle, WA, Amicus Curiae on behalf of Northwest Immigrants' Rights Project.

Rebecca A. Smith, National Employment Law Project, Seattle, WA, Amicus Curiae on behalf of the National Employment Law Project.

FAIRHURST, J.

¶ 1 Alex Salas asks us to reverse a published Court of Appeals decision affirming a jury verdict in favor of Hi-Tech Erectors. Salas was injured when he slipped from a ladder erected by Hi-Tech while working at a construction site. He sued Hi-Tech alleging negligence. At trial, evidence was admitted that Salas was an undocumented immigrant. He argues that the trial court erred by admitting this evidence. We agree and reverse the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 Salas entered the United States from Mexico in 1989. He applied for citizenship, but his application has never been processed. While Salas had a visa upon first entering the United States, his visa expired in 1994. Salas has lived and worked in the greater Seattle area since 1990. He has paid taxes during that time. He was married and, at the time of trial, had three children ages 3, 10, and 14.

¶ 3 At the time of the accident, Salas was employed by Charter Construction. Charter hired Hi-Tech to erect scaffolding at its work site at the San Villa condominium complex at Northgate. Salas was at the San Villa work site when he had to climb a ladder on the scaffolding to reach some windows. The day was wet, and the ladder did not have a textured surface to prevent slipping. Salas slipped and fell more than 20 feet to the ground, severely injuring himself.

¶ 4 Salas brought suit against Hi-Tech alleging negligence. The trial court granted partial summary judgment in favor of Salas, concluding that the ladder Salas had climbed did not meet code requirements. The trial court denied summary judgment as to liability, proximate cause, and damages.

¶ 5 Shortly before trial, it became apparent from the deposition of Salas' treating psychiatrist that Salas was in the United States illegally. Salas moved in limine to exclude evidence of his immigration status. The court determined that if Salas sought lost future income, then evidence of his immigration status would be admissible.¹ The court recognized that some jurors might be “so hung up on the immigration issue that they would really take it out on him,” but the court decided that the evidence was probative of whether Salas' future income would be in United States dollars or the currency of his home country. Report of Proceedings (RP) (May 15, 2006) at 28. Salas sought lost future income, and evidence of his immigration status was admitted.

¶ 6 The jury, by special verdict form, found that Hi-Tech was negligent. However, the jury determined that Hi-Tech was not the proximate cause of Salas' injuries. Therefore, the jury entered a verdict in favor of Hi-Tech.

¶ 7 Salas appealed, and the Court of Appeals affirmed. Salas v. Hi-Tech Erectors, 143 Wash.App. 373, 177 P.3d 769 (2008). The Court of Appeals concluded that evidence of immigration status should generally be inadmissible because its prejudicial effect is great. Id. at 383, 177 P.3d 769. However, the Court of Appeals affirmed the trial court because Salas' immigration status was discovered late and the court was not provided with sufficient relevant authority on the issue. Id. We granted Salas' petition for review. Salas v. Hi-Tech Erectors, 164 Wash.2d 1030, 197 P.3d 1184 (2008).

II. ISSUE

¶ 8 Did the trial court abuse its discretion by admitting evidence of Salas' immigration status when Salas sought damages for lost future income?

III. ANALYSIS

¶ 9 We review a trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997). A trial court abuses its discretion when its decision “is manifestly unreasonable or based upon untenable grounds or reasons.” Id. “A trial court's decision is manifestly unreasonable if it ‘adopts a view “that no reasonable person would take.” ’ ” In re Pers. Restraint of Duncan, 167 Wash.2d 398, 402-03, 219 P.3d 666 (2009) (quoting Mayer v. Sto Indus., Inc., 156 Wash.2d 677, 684, 132 P.3d 115 (2006) (quoting State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003))). “A decision is based on untenable grounds or for untenable reasons if the trial court applies the wrong legal standard or relies on unsupported facts.” Id. (citing Mayer, 156 Wash.2d at 684, 132 P.3d 115).

¶ 10 All relevant evidence is admissible unless its admissibility is otherwise limited. ER 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401. “The threshold to admit relevant evidence is low, and even minimally relevant evidence is admissible.” State v. Gregory, 158 Wash.2d 759, 835, 147 P.3d 1201 (2006) (citing State v. Darden, 145 Wash.2d 612, 621, 41 P.3d 1189 (2002)).

¶ 11 Here, admissibility of Salas' immigration status was conditioned on Salas' seeking lost future wages. The court reasoned that Salas' immigration status was relevant to a determination of lost future wages because it called into question whether Salas' labor would be valued in United States dollars or some other currency.

¶ 12 It should be noted that Salas' immigration status is the only evidence in the record that suggests he may be deported. Salas has resided in the United States since 1989 and has lived without a visa since 1994. He has worked, purchased a home, and had three children in the United States. The record furnishes no evidence of pending removal proceedings or a deportation order.

¶ 13 Based solely on his immigration status, the risk of Salas being deported is exceptionally low. The Department of Homeland Security (DHS) estimates there were 11.6 million unauthorized immigrants residing in the United States as of January 2008. Michael Hoefer, et al., U.S. Dep't of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2008 (Feb. 2009), http:// www. dhs. gov/xlibrary/assets/statistics/publications/ois_Ill_pe_ 2008.pdf (last visited Apr. 9, 2010). Excluding apprehensions by border patrol, DHS apprehended 67,728 undocumented immigrants in 2008. U.S. Dep't of Homeland Security, Office of Immigration Statistics, Annual Report: Immigration Enforcement Actions: 2008 (July 2009), http:// www. dhs. gov/ xlibrary/ assets/ statistics/ publications /enforcement_ar_08.pdf (last visited Apr. 9, 2010). Therefore, apart from immigrants apprehended at the border, less than one percent of the unauthorized immigrant population was apprehended in 2008.

¶ 14 Even if an undocumented immigrant is apprehended, removal from the United States is not a foregone conclusion. The immigrant still faces removal proceedings in front of an immigration judge. 8 U.S.C. §§ 1229, 1229a. Even if an immigrant is deportable, removal can still be canceled in some cases. Id. § 1229b. Consequently, immigration status alone is not a reliable indicator of whether someone will be deported.

¶ 15 The relevance requirement is not a high hurdle. Relevance is defined as evidence that has “any tendency” to make the existence of a consequential fact more or less likely than it would be if the evidence did not exist. ER 401. With regard to Salas' future earning power, one consequential fact will be the market in which he sells his labor. Salas' immigration status creates a greater likelihood that his labor market will not be the United States than if Salas legally resided here. Even though his immigration status only increases this risk by a minimal amount, minimal relevancy is all that ER 402 requires. Therefore, we hold that Salas' immigration status is relevant to the issue of lost future earnings.

¶ 16 Other jurisdictions have come to the same conclusion. Rosa v. Partners in Progress, Inc., 152 N.H. 6, 15, 868 A.2d 994 (2005) (“[A]n illegal alien's status, though irrelevant to the issue of liability see Melendres v. Soales, 105 Mich.App. 73, 306 N.W.2d 399, 402 (1981), is relevant on the issue of lost earnings.”); id. (“While the matter of plaintiff's status as an illegal alien was clearly irrelevant on the question of liability, it was material and relevant to the issue of damages, specifically the present value of future lost earnings.”). Contra Clemente v. California, 40 Cal.3d 202, 221, 219 Cal.Rptr. 445, 707 P.2d 818 (1985) ( “[T]here was no evidence that he had any intention of leaving this country and the speculation that he might at some point be deported was so remote as to make the issue of citizenship irrelevant to the damages question.”).

¶ 17 “Although relevant, evidence may be...