Tracy Morgan v. Walmart: A Primer

I usually love it when my obsession with Hollywood collides with my chosen profession.  Most of the time, like when Justin Bieber gets deposed, the results are tragically funny.   Other times, the results are just tragic.  Such is the case with the recent collision between the Wal-Mart truck and the bus carrying several comedians, including Tracy Morgan and James McNair (who was killed in the crash).

Tracy Morgan and some of the other passengers in the bus have now sued Wal-Mart — both the corporation (Wal-Mart Stores, Inc.) and its trucking company (Wal-Mart Transportation, LLC) — for negligence as well as reckless or intentional conduct.  By alleging that Wal-Mart engaged in reckless/intentional activities that led to Tracy Morgan’s injuries (and the injuries of the other plaintiffs), the plaintiffs can seek punitive damages.

Morgan and the other plaintiffs are claiming that the driver of the Wal-Mart truck was seriously fatigued and had violated federal rules on maximum allowable hours driving per day and driving without rest.  According to their complaint, the driver actually commuted from his home in Georgia all the way up to Delaware to pick up the semi-truck he was driving when he collided with Morgan’s bus in New Jersey.  The complaint also alleges that the semi-truck had automatic collision-avoidance features that didn’t work the night of the collision.

As the driver’s employer (assuming he actually is employed by Wal-Mart — sometimes there can be fights over that basic question), Wal-Mart is liable for the driver’s negligence if it happened during the time he was driving for Wal-Mart.  This is based on a legal theory known as “respondeat superior,” which holds that an employer can be held liable for an employee’s negligence if the negligence occurred when the employee was acting within the scope of his employment.  See Murphy v. City of Rochester, 986 F.Supp.2d 257 (W.D.N.Y. 2013).

Punitive damages, like those sought here, are damages that don’t compensate plaintiffs for the harm they’ve suffered (e.g., medical bills, pain and suffering, etc.).  Instead, the point of punitive damages is to punish the defendant for behaviors that we, as a society, have decided are seriously wrong.  See ExxonShippingCo. v. Baker, 554 U.S. 471, 492 (2008) (where the Supreme Court explained that punitive damages are “aimed not at compensation but principally at retribution and deterring harmful conduct.”).  As a result, the general rule is that punitive damages are only available where a defendant’s conduct has been “outrageous,” due to gross negligence, reckless indifference to the rights of others, or even more “deplorable” behavior (as opposed to those cases in which a defendant caused harm through simple negligence).  Id. at 493.  When an action is taken or omitted by a defendant in order to increase their profits, that is another reason for increased punitive damages.  Id.

Presumably, negligence in the current case will be relatively easy to prove, although it is possible that the defense will have evidence showing that, even using reasonable care, the driver would not have been able to avoid the accident.  The bigger issue, of course, will be whether Wal-Mart knew (or should have known) that its drivers were driving too much, were too fatigued, and that the automatic features on the truck weren’t working.  This could be a major battle and these types of fights often involve massive amounts of e-discovery because knowledge (or willful ignorance) can frequently be found in an email exchange.

Unfortunately, thousands of people die each year in accidents involving semi-trucks.  This accident and the subsequent lawsuit, of course, are receiving more attention than usual because of Tracy Morgan’s involvement.  While nothing will bring back James McNair, and Tracy and the others may have lifelong issues to deal with as a result of this accident, it will be interesting to see what happens with this lawsuit.  Selfishly, I hope Tracy is able to return to comedy one of these days.  He will always be Tracy Jordan to me and I hate to think we’ll never get to see his talent at work again.

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).