Walmart Says Tracy Morgan Should Have Worn His Seatbelt

The New York Times reports that Walmart claims that injuries sustained in a June car crash involving a Walmart tractor-trailer truck and a van carrying comedians including Tracy Morgan could have been prevented if the passengers were wearing their seatbelts. Tracy Morgan and two other passengers were injured when the tractor-trailer truck rear-ended the van while allegedly travelling 65 mph in a 45-mph construction zone on the New Jersey Turnpike. A fourth passenger was killed in the accident. Prosecutors have criminally charged the truck’s driver in connection with the accident and said that the driver had not slept in more than 24 hours at the time of the accident.

In July, the injured passengers filed a civil suit against the truck’s driver and Walmart. The suit included a claim for punitive damages because of Walmart’s “gross, reckless, willful, wanton and intentional conduct.” In Walmart’s response filed yesterday, Walmart 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.” Furthermore, “[b]y failing to exercise ordinary care in making use of available seat belts, upon information and belief, plaintiffs acted unreasonably and in disregard of plaintiffs’ own best interests.” Therefore, the response concluded that “all or a portion of the injuries could have been diminished or minimized by the exercise of reasonable conduct in using the available seat belts.”

Now, this accident happened in New Jersey, but we’re going to take a look at the various claims and arguments as if it had happened in North Carolina. First, let’s look at the passengers’ claim against Walmart 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:

(1)    Fraud.

(2)    Malice.

(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.

The theory of respondeat superior makes an employer liable for damages caused by their employees’ negligence during the course of their employment. An employer is held liable for their employees’ negligence because the employee is deemed to be an agent of the employer. However, under subsection (c) of the punitive damages statute, Walmart would not be liable for punitive damages “solely on the basis of vicarious liability for the acts or omissions of” the truck driver. In an earlier article, the New York Times reported that the 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.

This fact scenario is similar to that found in the 2011 North Carolina Court of Appeals case, 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.

By driving so fatigued, the driver would have violated a safety regulation. The court stated that the bus driver’s violation of the safety regulation could establish negligence per se, but that 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 concluded that the evidence in George was sufficient to show that the bus driver fell asleep, but 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 in this type of situation, 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.

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. However, this would support an award of punitive damages based on the truck driver’s actions and North Carolina statute states that Walmart would not be liable  for punitive damages “solely on the basis of vicarious liability for the acts or omissions of” the truck driver. 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 he clearly would not have had enough time to sleep sufficiently before beginning the shift in question.

What now of Walmart’s argument in its response that the injuries were caused by the passengers failure to wear their seatbelts? Under North Carolina law, the failure to wear a seatbelt cannot be used as evidence of 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.

If you have been injured in a car accident, visit www.rflaw.net for legal help.