Saturday, July 12, 2014
Comedian Tracy Morgan has filed a civil lawsuit in federal court against WalMart seeking compensatory and punitive damages for the injuries he suffered on June 7th when a WalMart semi plowed into the rear of the limousine in which he was riding as a passenger. He was returning to his home in New York City after performing at the Dover Downs Hotel and Casino in Delaware when the accident happened. He is currently in a rehabilitation center recovering from a broken leg and broken ribs.
Comedian James McNair, 62, (AKA: Jimmy Mack) was not so “lucky.” He died in the accident.
Jeffrey and Krista Millea and another comedian, Ardley Fuqua, also were riding in the limousine and they have joined Morgan as plaintiffs in the lawsuit.
The driver of the WalMart semi is Kevin Roper, 35, of Jonesboro, GA. He told police that he nodded off and failed to notice that traffic ahead of him on the New Jersey Turnpike had slowed to a stop.
The Wall Street Journal is reporting today,
A report by federal transportation safety investigators said Mr. Roper was driving 65 mph in the 60 seconds before he slammed into the limo van. The speed limit on that stretch of the turnpike is 55 mph and was lowered to 45 mph that night because of construction.
Mr. Roper had been on the job about 13½ hours at the time of the crash, the report concluded. Federal rules permit truck drivers to work up to 14 hours a day, with a maximum of 11 hours behind the wheel.
Roper has been charged in New Jersey state court with causing a death by auto, assault by auto, and not sleeping for more than 24 hours before the crash. He has entered pleas of not guilty.
WalMart was sued pursuant to the legal doctrine of respondeat superior because Roper was employed by WalMart at the time of the accident and acting within the scope of his employment (i.e., driving the truck).
Compensatory damages consist of special damages (e.g., out of pocket expenses caused by defendant’s conduct, such as medical expenses and lost income from an inability to work) and general damages for pain and suffering.
Generally speaking, general damages are usually awarded in an amount that is three times the amount of special damages.
Morgan and the other plaintiffs also are seeking punitive damages (i.e., to punish a defendant for intentional, willful, wanton or reckless misconduct).
To prevail against WalMart on their request for punitive damages, I expect they will have to show that WalMart knew that Mr. Roper was driving in excess of the hourly limits imposed by statute on long distance truck drivers. Since he lived in Georgia and was commuting to New York City to pick up a load for WalMart, I do not believe they will encounter much difficulty meeting their burden of proof.
This case is worth millions of dollars and it looks like WalMart does not have a leg to stand on.
The sky would be the limit except that, “fortunately” for WalMart, the Supreme Court of the United States (SCOTUS) has capped punitive damage awards to not more than ten times the amount awarded for compensatory damages.
Unless settled, which I doubt will happen because of the punitive damages claim, further action in this case will not happen until the criminal case against the driver is resolved.
Therefore, do not be surprised if a stay is entered by the United States District Court judge.
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