According to Walmart, comedian Tracy Morgan is to blame for his own injuries sustained in a car accident. After all, when a Walmart delivery truck driver slammed into his limousine, Morgan wasn't wearing a seat belt.
On June 7, Morgan and several of his friends were passengers in a limousine which was struck by a Walmart delivery truck driven by Kevin Roper, 35. Morgan was seriously injured and fellow comedian James "Jimmy Mack" McNair was killed in the accident.
Investigators say that Roper was travelling in excess of 20 miles per hour above the speed limit. He had been on the clock for Walmart for 13-1/2 hours . . . only 30 minutes short of the time limit allowed by law for commercial truck drivers, and 2-1/2 hours longer that the time allowed behind the wheel. Investigators believe that Roper likely fell asleep behind the wheel, a reasonable assumption considering that prior to starting his shift nearly 14 hours before the accident, he had commuted 700 miles from his home to the Walmart facility where he began his shift. It is believed that the driver was awake for more than 24 hours before the accident.
Roper has pleaded not guilty to one count of death by auto and four counts of assault by auto in New Jersey.
In July, Morgan, two other passengers, and the wife of a passenger filed a lawsuit against Walmart, saying that the retailer was negligent in allowing Roper to drive and that it should have known he had already been awake for long hours, citing an "unreasonable" 700 mile commute from Georgia to Delaware. The lawsuit seeks a jury trial as well as compensatory and punitive damages.
Now, Walmart has responded to the lawsuit. Although the retailer said it would take "full responsibility" if its driver was found to be at fault, Walmart now says that Morgan and his fellow passengers were "caused, in whole or in part, by plaintiffs' failure to properly wear an appropriate available seat belt restraint device."
In other words, Walmart is saying that they aren't responsible for the injuries Morgan and his entourage sustained, because they failed to "act reasonably" and with regard for their own safety when they didn't buckle up.
Attorneys for the plaintiffs call Walmart's response "surprising and appalling," and media headlines are crucifying the retail giant for a blame-the-victim mentality.
While the defendant's response may be surprising in that it seems to be a departure from their promise to take full responsibility, it is not a surprising tactic in lawsuit defense.
Contributory negligence is the argument that the plaintiff is partially or completely responsible for his or her own losses because of a failure to act reasonable or exercise due caution. A jaywalker who darts in front of a vehicle may demonstrate contributory negligence. A worker who falls from scaffolding after failing to wear a safety harness my demonstrate contributory negligence. And in this case, Walmart says that vehicle passengers that don't wear their seat belts demonstrate contributory negligence.
No one is going to take a lawsuit lying down. In almost every case, a defendant will aggressively try to protect his or her assets--even if that means blaming the victims. The Walmart/Tracy Morgan lawsuit shows why it is so important to hire a good attorney n a personal injury lawsuit.
