Key Issues to Consider in the Tracy Morgan Crash

By Justin Parafinczuk | September 29, 2014

The Tracy Morgan crash is certainly a tragedy. It caused the death of Jimmy Mack and seriously injured Tracy Morgan. The accident has sparked a great deal of debate nationally about the safety measures taken by semi-truck drivers and the companies that employ them. The simple, knee-jerk reaction of most people who hear about any semi-truck in an accident with another vehicle is that it must have been the big truck that caused the accident. In the Morgan case, it is virtually certain, barring some unknown evidence that Kevin Roper, the driver of the Walmart truck, was at fault.

The major questions now are: What was the actual cause of the accident? How should Walmart handle the case from a litigation perspective? And, are the status quo semi-truck driving regulations adequate?

Key Issues

It’s fair to say that most attorneys would opine that Walmart has an uphill battle if it chooses to litigate this case. The key issues that Walmart would focus on to defend itself are all public information now. Although there has been a great deal of publicity regarding the fact that Roper had worked for about 13 and a half hours at the time of the crash, federal rules permit truck drivers to work up to 14 hours a day, with a maximum of 11 hours behind the wheel.

There have been no reports that Roper exceeded his work time or his driving time in violation of the federal rules. As a matter of liability, Roper and Walmart were not negligent in this regard. Semi-truck drivers routinely use up exactly all their working hours or just below the maximum 14 hours. The real issue is simple: Roper was speeding and rear-ended the vehicle. Reports state that Roper was driving 65 mph in a zone where the speed limit was 45 mph. In almost every state, the law is that if one vehicle rear-ends another, the vehicle that caused the collision is presumed to be at fault. There are some states that allow the vehicle that rear-ended the other vehicle to assert a defense that the vehicle in front of it stopped short or was driving erratically.

If Walmart were to contest liability in this matter, it would have to hire an accident reconstructionist to analyze all the available data from the crash and suggest that the driver of Morgan’s vehicle was, in fact, negligent because he was driving erratically or stopped short. However, a major problem would exist for any expert or accident reconstructionist opining on this accident, which is that Roper was driving 20 mph over the speed limit. This fact alone, if Walmart cannot disprove it, is enough to make Roper and Walmart liable for the crash.

Of course, other arguments have been made by the attorneys representing the passengers in the vehicle, including that Roper did not sleep for 24 hours before the crash and fell asleep. However, these are only allegations at this point. As to causation, Roper was driving 20 mph over the speed limit, and was unable to slow down or stop to avoid the collision. There has been no evidence released or uncovered that he was actually asleep at the time of the accident. There is currently only an allegation by the plaintiffs’ attorneys.

The last major allegation that the plaintiffs’ attorneys have made is that the speed control function in the vehicle was not functioning properly and could have prevented the accident by forcing the semi-truck to slow down and avoid the impact. The most basic speed control function is a “governor,” which simply caps the speed of the truck at 65 to 70 mph. There are many safety systems that can be put in semi-trucks or any other vehicle for that matter. Again, it is not a proven fact that the speed system in Walmart’s truck was not functioning properly, but it has been alleged.

Walmart’s Path

Walmart could choose several different paths to handle this case and should consider some key factors in forming its litigation plan.

The first issue is the recent negative publicity that Walmart has received and the even more negative publicity that may ensue. If depositions are conducted, and the plaintiffs actually prove some or all of their allegations, the media will surely publish articles in the future about the ongoing litigation. This accident is not something that Walmart wants on the front page of newspapers.

The negative publicity alone is enough of a reason to settle the case now. However, the plaintiffs may be asking for a settlement amount that Walmart believes to be too high based on jury verdict and settlement reports from similar cases. In that situation, Walmart must expeditiously use investigators, forensic experts, accident reconstructionists and economic damage experts to disprove or discredit plaintiffs’ allegations. If Walmart is able to disprove at least some of the allegations, it will improve its bargaining power and hopefully convince the plaintiffs to settle for a lesser amount.

The worst case scenario here for Walmart is if this case actually goes to a jury trial. This is highly unlikely, but if the settlement demand is too high, some cases must be decided by a jury. The jury would have to consist of individuals who have virtually no knowledge of the accident, so that there is no prejudice to Walmart. But, realistically, if a jury were to only hear that a Walmart truck rear-ended the plaintiffs’ vehicle, the truck driver was traveling 20 mph over the speed limit and Jimmy Mack was killed and Tracy Morgan was seriously injured, the jury would render a significant multi-million dollar verdict. No other facts would really matter, unless the judge allowed the plaintiffs to seek punitive damages. Then the verdict could double. The sooner Walmart resolves this case, the better.

Federal Rules & Regulations

The federal rules and regulations for semi-trucks have also come under fire as a result of Morgan’s accident.

Critics of the federal rules and regulations suggest that the rules are not stringent enough regarding working and driving hours, mandatory rest time and safety equipment on the semi-trucks. Trucking companies and their insurers across the country have resoundingly rejected such arguments. Trucking companies counter that if the rules are changed even slightly, the effects could be counterproductive.

The main argument that more stringent restrictions on hours is counterproductive is that it would force companies to put semi-trailers on the road during the day for long periods of time in heavy traffic, which would cause even more accidents.

The reality is that auto accidents are going to happen, whether they are semi-trucks or cars. The Tracy Morgan case may be exposing drivers to safety concerns regarding semi-trucks. This is only one case and should not create an automatic reaction pushing to overregulate semi-trucks. Unfortunately these types of accidents happen all over the country and many drivers never hear about them. Most importantly, companies with semi-trucks and the Federal Transportation and Safety Department have been working together to improve safety long before the Tracy Morgan crash and will continue to do so to ensure the safety of truck drivers and automobile drivers.

About Justin Parafinczuk

Parafinczuk is a shareholder at Koch Parafinczuk & Wolf, P.A., a statewide insurance defense firm in Florida.

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