The Washington Post reports that Tracy Morgan settled with Walmart in connection with his suit filed after being injured in an accident with a Walmart truck driver almost a year ago. Last June, Morgan and several others were travelling in a limo bus on the New Jersey Turnpike when the limo bus was rear-ended by a Walmart tractor-trailer, the driver of which had not slept in 24 hours. One of the passengers of the limo bus was killed, and Morgan sustained a broken leg and broken ribs, as well as a severe brain injury. Morgan sued Walmart last July for damages. The suit included a claim for punitive damages because of Walmart’s “gross, reckless, willful, wanton and intentional conduct.” Walmart filed a response in September which claimed that “plaintiffs’ injuries, if any, were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seat belt restraint device.” Although the terms of the settlement agreement have not been disclosed, both Morgan and Walmart appear pleased with the settlement.
Although the accident occurred in New Jersey, if an accident such as this one occurred in North Carolina, a couple of issues would be raised. First, under North Carolina law, a defendant cannot use evidence of the failure to wear a seatbelt to show contributory negligence. G.S. 20-135.2A requires that “each occupant of a motor vehicle manufactured with seat belts … [has] a seatbelt properly fastened about his or her body at all times when the vehicle is in forward motion on a street or highway in this State.” However, subsection (d) of the statute states that “[e]vidence of failure to wear a seat belt shall not be admissible in any criminal or civil trial, action, or proceeding except in an action based on a violation of this section or as justification for the stop of a vehicle or detention of a vehicle operator and passengers.” Therefore, Walmart would not be able to introduce evidence of this failure to reduce its liability for the passenger’s injuries.
Second, the original suit filed by Morgan included a claim for punitive damages. The issue of punitive damages is addressed by North Carolina statute. G.S. 1D-15 states that:
(a) Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded:
(3) Willful or wanton conduct.
(b) The claimant must prove the existence of an aggravating factor by clear and convincing evidence.
(c) Punitive damages shall not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another. Punitive damages may be awarded against a person only if that person participated in the conduct constituting the aggravating factor giving rise to the punitive damages, or if, in the case of a corporation, the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.
(d) Punitive damages shall not be awarded against a person solely for breach of contract.
Under subsection (c) of the punitive damages statute, Walmart cannot be liable for punitive damages based only on vicarious liability. Instead, its own actions must establish fraud, malice, or willful or wanton conduct. In an article from last summer about the accident, the New York Times reported that Morgan’s suit claimed that Walmart should have known how much sleep its truck drivers had before driving their shifts. Furthermore, the driver had commuted 700 miles to begin his shift and the suit argued that a commute of this distance prior to beginning a shift was unreasonable and instead the employer should have had him report to a location closer to his home. Would these facts establish conduct from Walmart sufficient to support an award of punitive damages in North Carolina?
The North Carolina Court of Appeals looked at a case with similar facts in 2011, George v. Greyhound. In that case, a Greyhound bus driver rear-ended an RV. The evidence suggested that the bus driver had fallen asleep before hitting the RV. The plaintiff’s claim for punitive damages was based
on allegations that [the bus driver] knew or should have known that he was overtired, sleepy, or otherwise not fit to operate the bus; that he continued to operate the bus and failed to remain awake and alert immediately prior to the collision; and that he fell asleep while operating the bus, causing the collision.
The driver’s driving while so fatigued would violate a safety regulation. Although the violation of the safety regulation would be sufficient to establish negligence per se, it would not “establish willful conduct per se. Instead, there must be sufficient evidence of a ‘deliberate purpose not to discharge a duty’ imposed by the safety regulation.”
The court stated that “inadvertent driver error caused by falling asleep behind the wheel by itself does not support an award of punitive damages.” To support an award of punitive damages, the plaintiff would have to show that the bus driver
acted with a “deliberate purpose” not to discharge any duty imposed by [the safety regulation] or acted with a “reckless indifference” to the rights of others by talking on the telephone and failing to get sufficient rest before beginning his run.
Although it is arguable in Tracy Morgan’s suit against Walmart that the truck driver did not just inadvertently fall asleep but acted with a “reckless indifference” by failing to get sufficient rest before beginning his run, this would not support an award of punitive damages against Walmart under North Carolina statute. It would be much harder to show that the commute by the truck driver prior to his shift was an act of reckless indifference by Walmart. A fact that could possibly show such reckless indifference might include the driver having just returned from another shift just before his departure for his 700 mile commute, which would mean that Walmart should have known that he clearly would not have had enough time to sleep sufficiently before beginning the shift in question.
If you have been injured in a car accident, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.