(Nearly) killed their victim (did kill his friend), then called him a scofflaw when called to trial. Via commentor Corner Stone:
Walmart today faulted Tracy Morgan for not wearing his seat belt in connection to the injuries the comedian sustained in June from a six-car crash on the New Jersey Turnpike.
Morgan, 45, and others are suing the retailer after one of its trucks slammed into the “30 Rock” star’s limo bus, sending him to the hospital and killing a fellow passenger, James McNair…
Walmart added that if the passengers had been wearing safety restraints, “all or a portion of the injuries could have been diminished or minimized.”
The company did not respond to the plaintiffs’ claims that Walmart driver Kevin Roper, who hit Morgan’s limo bus, had driven hundreds of miles during his shift and was fatigued because it’s a party to the National Transportation Safety Board investigation…
The lawsuit from Morgan and others claims that Walmart should have known Roper was awake and driving for more than a full day before the crash.
The kicker, of course, is that most Wal*Mart victims don’t have Morgan’s ability (money) to haul them into court in the first place.
Apart from thinking about the proper usage of tumbrils (“a two-wheeled cart or wagon… in particular they were associated with carrying manure”), what’s on the agenda for the day?
What did I do to get a targeted ad from some division of UCLA specializing in prosthetic limbs?
@Tokyokie: Did you say something cost an arm and a leg?
@Tokyokie: Nothing wrong with UCLA, they call me every year(class of 82).
Correction: The kicker, of course, is that most Wal*Mart victims return time and again to give Wal*Mart their money in exchange for crappy merchandise.
FTFY Anne. Happy to be of service, you will get my bill in the mail.
Well, y’now, lawyers gonna lawy. That’s what they do. But if Walmart’s execs were smart, they’d just offer a big settlement now and get this over with. A nasty trial complete with victim blaming is not going to do them any good; anything they manage to whittle own on the damages is just going to the lawyers anyway.
Contributory negligence is a thing, however, so you can’t blame them for pleading this (one would be unable to find a halfway competent lawyer who would not insist on doing this). Still, this sounds like a defense against damages… I don’t see how they can dismiss a claim of negligence with this sort of claim.
Maybe there is something in NJ case law that makes the seatbelt important or not important.
Boilerplate defense pleading always is a PR nightmare, and it would have been far better to have selected a more deft pen to make the mandatory, use-it-or-lose-it allegation of comparative fault in a celebrity case.
They could have stated it something like this:
That is a much softer statement and does the same thing legally.
The problem is one within the legal culture, and is particularly egregious as it is applied in tort culture; we tend to hyperbolize and waggle our dicks in an effort to maximize results for “our side” when in reality, most factual situations are pretty gray as opposed to being black and white.
The results can work out OK presuming similar levels of competence, skill and access to appropriate resources and expertise are available to both parties. Things fall apart, however, when those levels are asymmetric; this is usually magnified when litigating against a large institution or concern. Sadly, I’d estimate that serious asymmetry exists in about 2/3 of all tort cases, as there are legions of piddling to middling tort lawyers who aren’t financially set up to take on a major damage case.
Personally, I no longer do tort stuff. I’m not psychologically equipped to do contingency work (not really a gambler or financial risk taker, and when I had thousands of dollars and hundreds of hours committed to litigation, it made me nearly ill). I’ve tried them, I’ve settled them and I have had some surprisingly nice results, but I refer them out for a cut anymore and am happier for it.
My current mix pleases me. I get paid as I go and close out files in a reasonable time frame. Overhead is manageable and while I’m never going to ring the bell with a huge strike, I’m also never going to face the aftermath of losing a trial where I’ve committed $75,000-$100,000 of my own money in addition to a few hundred hours of work.
Yes, this is routine. Seatbelts do save lives and everyone should have been wearing them. it doesn’t actually get Walmart off the hook though, but it might reduce the damages. Driver still has primary fault and walmart and other companies contribute to the likelihood of accidents by setting up the financial situation that leads to drivers working double shifts. companies that care pay for compliance.
@Botsplainer: Good points, all. The competition for business from businesses like Walmart is pretty intense, and I doubt anyone wants to be the lawyer who is accused of failing to be zealous enough.
Plus, organizations like Walmart are not ones you can give much advice to. Who is going to listen to you when you tell them they need to soften the language in the defenses and counterclaims? These are people who are happy to drive their customers and suppliers into bankruptcy and poverty.
I have a friend who’s a defense attorney here in Miami. His motto is “Innocent until indigent.”
Yeah, that’s a great point. I’m guessing they’re self-insured, but that the insurance side and PR side have completely different management cultures because they would not report to the same people. The lead adjuster/legal referrer on a claim like this will be a completely amoral careerist of about 20 years seniority, have zero sense of empathy or humor, and pursues every claim on a template grounded in sociopathy because he or she would fall on a grenade for that $70,000 salary. The execs love that adjuster because that adjuster has practically zero sense of proportion and returns outsized gains just for being an asshole. And don’t be confused – that adjuster loves the job and would do it for less.
I didn’t realise he was actually on a bus (airport shuittle sized) until this. I know school buses don’t even have seat belts. I wonder if these mini buses do.
The problem is that if you have enough money to fight Wal-Mart, damages are going to be huge. The damages for somebody who makes $1,000,000 per episode of a TV show missing six months of work will add up quickly. Morgan is not going to settle for chump change, nor should he.
Of course if they had nearly killed a school teacher or a butcher, they wouldn’t even have to think about settling, even though it would be much, much cheaper.
Aside from the driver, who wears a seat belt in a limo?
@Baud: Does or should? In 1975 I was lying head first in the back of a van on a nylon sleeping bag. My buddy was fiddling with the 8 track and hit a hydrant and telephone pole. I was thrown forward into the seats and broke my back. I was really lucky that I was not paralyzed but still had harringtion rods installed on my spine and spent 9 months in a full (plaster) body cast. I was in the big public hospital in Atlanta and had great care but I didn’t sue my buddy. If I recall he didn’t have insurance. We were really smart.
@Baud: My first thought as well.
Shouldn’t Walmart be mindful that they could be slammed in Morgan’s future performances?
@debbie: Hollyweird liebruls always whine when people try to kill them. Wal-mart’s customers won’t be swayed away from paying 37 cents less for their geegaws just because one of “them” says something bad about Wal-Mart.
Yeah, the asymmetric resource would allow them to starve out the claimant and make them eager to settle just to get something rolling in.
There was a local case several years ago where a girl lost both of her feet on a malfunctioning Six Flag Park ride. Basically, it was one of those Tower of Terror things – a bunch of people get strapped in to open, outward-facing seats, lifted 130 feet, and dropped. The steel cable on this one snapped and whipped, and an appropriately seated 13 year old girl had both legs severed at ankle level (I think they were able to reattach one foot, as it had severed more on the leg).
Anyway, it was apparently poorly maintained – they were outside all of the manufacturer guidelines, as they hadn’t performed the mandatory daily cable check in 6 months, IIRC. Problem was that the defense firm was really aggressive in pleading. They blamed the girl, they blamed other parties, and they used boilerplate aggressiveness. While they were doing it, local press dutifully reported it, and for two solid years, the public got repeated reminders of how slovenly and reckless they were while attendance plummeted. We refused to let our girls go there anymore, and none of their friends were going either, so it simply quit being a local attraction for teens. No teens, no peer pressure, and the amusement park closed.
@debbie: “Could be” slammed? He’s going to trash Walmart every chance he gets. That’s why I’m sure the settlement will include language that precludes him from doing so whist on stage.
That Walmart doesn’t see they’re fucking with a very likable, very popular Hollywood-established guy is amazing. Of course, he’s a blah, so perhaps a majority of Walmarts customers don’t care for him and they understand this…
You seem to have had a lot of close calls.
But, yeah, I suppose people should wear seat belts whenever they’re in any kind of moving vehicles, but it seems to defeat the purpose of having a limo. IIRC, trains don’t even have seatbelts, and lord knows they sometimes crash.
@Baud: They do sometimes go off the rails.
Neither their adjuster nor their lawyers will be that imaginative. The loss totals in the demand package probably made their eyes bleed, because the self-insured company adjusters are lowly paid sociopaths who see every dollar out as a personal affront.
The responses are in the manual as if engraved in stone and delivered by God. I doubt that any thought went into it.
Walmart, salted bag of dicks, add your own verbs, conjunctions and prepositions!
@Baud: Proly not any more than anyone else, I just have a tendency to relate them to current events.
So somebody is wanting to frack under the Ohio River in West Virginia, and it’s brilliant government wants to make it happen.
Undoubtedly, the empty shell of a company that will do it will be named Liberty Freedom Patriot Partners LLC or some stupid shit like that.
As one of the millions of potentially affected water consumers downstream, I’m really enthused..,
More than me, at least. I’ve never been in the hospital for injury or illness and the closest near death experience I’ve had is swimming too far from shore at the beach, and having to push myself to make it back.
We refused to let our girls go there anymore, and none of their friends were going either, so it simply quit being a local attraction for teens. No teens, no peer pressure, and the amusement park closed.
Bitterly blaming “greedy trial lawyers” all the while, no doubt.
@Baud: That can be a frightening experience.
Damn greedy trial lawyers clearly cost the community a couple hundred minimum wage part-time jobs all because of the petty event of some stupid child losing both feet.
Joking aside, I felt that criminal penalties were warranted, and not just at the corporate level.
That Walmart doesn’t see they’re fucking with a very likable, very popular Hollywood-established guy is amazing. Of course, he’s a blah, so perhaps a majority of Walmarts customers don’t care for him and they understand this…
He’s had some controversy over anti-gay and “ablist” remarks, so we can expect those to be trotted out by Wal-Mart lawyers. As noted above, it’s in the manual. Not that any of that has fuck-all to do with liability or his injuries.
@Botsplainer: Six Flags Kentucky Kingdom, right? I think it’s reopened as just Kentucky Kingdom under different management.
Amusement-park ride accidents often are the result of rider negligence (idiots standing up on roller coasters and such)… but not always. As the restraint systems on these rides get harder to defeat, I suspect the fraction that are due to rider negligence as opposed to design or owner negligence is going down. That was a particularly clear-cut case where it obviously wasn’t the rider.
Then there are the ones that are a combination. A lot of park employees get killed because they were trying to retrieve something that a visitor dropped on the ride. Rider throws a tantrum, and the kid doesn’t tell them to go pound sand and gets decapitated by a roller coaster while going after the lost cell phone.
Yup. The guy who originally built up the park as a viable concern and solid moneymaker before he sold it to the feckless incompetents at Six Flags finally got back in. Took a while though – the property itself is leased from the state Fair Board, a useless agglomeration of the worst sort of grudge holding grifters and hacks. They had a long term hate for him, but he was the only one with enough assets willing to step up, do restoration (Six Flags tried to dismantle it all before they got locked out) and run a real park.
@Baud: City buses usually don’t have seat belts either. Nor do school buses, though the tall padded seats on modern school buses are supposed to help keep students from going flying in a crash.
(I recall having a long back-and-forth about the school bus case in another forum not too long ago. I remember a period in the Seventies when manufacturers were experimenting with putting seat belts on school buses, and I was surprised to find that the buses my daughter rides on generally don’t have them. The reasoning seems to have been that it’s difficult to get a bus full of children to use them correctly and not use them as flail weapons in an environment where the only adult supervision is a single driver. So it was decided to try to protect the kids in other ways, through “compartmentalization” with the tall seats. I’m not sure I entirely buy this, but it’s what I was told.)
But a full-sized bus is large enough that in many collisions, it’s going to experience smaller acceleration than the other vehicle. Airport-limo-sized buses sometimes actually do have seat belts, though they may rarely be used.
When the accident first happened, Walmart issued a statement saying if at fault, they would take full responsibility. Maybe my memory is faulty but that is what I remember. The news is not treating Walmart kindly.
I remember the backs of the seats in my school bus was the exposed metal framing for the seat. If I had been involved in a bus crash, it would have been “goodbye teeth.”
Just adding to the “lawyers defending lawyers” pile on. Yes, not pleading contributory negligence is malpractice and it has to be done. Yes, most defense attorneys are constitutionally incapable of dealing with the very idea that a little thought in how defenses are pled can save a client some bad PR, even in a high profile case like this one, In their minds “chest thumping boiler plate=’not malpractice’ and even the slightest bit of subtlety = ambiguity = ‘not safe.'” They’re all about playing it safe when it comes to stuff like pleading almost always all about not giving up anything without an epic fight when it comes to discovery.
Nor, indeed, is Walmart known as a company that’s going to shell out for a really first rate attorney in the first place. They treat their lawyers like the interchangeable non-brand name made in China crap they sell in their stores. One is as good as another and its all about price. At least when no executives are involved.
And no, you don’t need Morgan’s money in a case like this. If you have insurance (and most everyone can and should now unless you live in a Massive Resistance state) it only makes economic sense to have a contingency fee arrangement in a case like this no matter how rich (or poor) you are. And you have to bring the case to protect your interests because otherwise your health insurer is going to step into your shoes through subrogation and try it itself.
Gin & Tonic
@Matt McIrvin: Was on a couple of full-sized buses recently in Australia, and they have lap-and-shoulder belts at every seat, and placards in the bus stating that wearing them is the law.
From a different article on the accident:
Me, I tend to think of causality in terms of physics and acts (of commission) that people take, not things that people didn’t do. (I don’t think the legal argument, the “in whole” part at least, stands up even to a counterfactual account.) Walmart seems to be saying something along the lines of “Why didn’t you duck when I took a swing at you? That makes it your fault.”
Tomorrow, we turn the Pets Of… calendar page. It’s a festive little ceremony. My kitten Wednesday is one of the October pets, though she’s not a kitten anymore. Yippee!
In law, you have some duties to take commonsense actions to mitigate potential loss. In a car wreck, that is to use a seat belt in vehicles so equipped. In premises liability, that is to try and watch where you walk and to make attempts to ascertain the slipperiness and stability of where you tread. In contract, it is to attempt to minimize losses from another party’s breach – for example, if you’re a landlord with a defaulted tenant, you must make bona fide, active efforts to relet the property, even at a lower rate, or if you’ve received a nonconforming good, you have certain duties to attempt to allow a cure. There are a number of specifics, and to list them all would take an entire book.
Works on contingency?
No, money down!
Hey, Walmart, you know what would have guaranteed 100% no-injuries? NOT having your impaired driver slamming into his car.
Their argument makes me think of that old Ellen DeGeneres routine, where she mocks the airline’s belief that having your seat in the upright position will save you from any aircrash. Upright=live. Reclined one inch=die!
Dunkin Donuts up for a chutzpah award too. Their CEO made at least $4.2 million last year for his efficiency.
RIP Maria Fernandez, Dunkin Donuts employee at THREE northern New Jersey franchises (‘cuz none would not give her enough fulltime hours, $8.25/hour).
Dead in her car at age 32, during a nap between shifts. She kept a container of extra gasoline in the car, to be sure she could make all her work commitments on a tight schedule. Napped with the air conditioning on and windows closed on a hot August morning. Overcome by fumes in an enclosed space. Found foaming at the mouth and unresponsive several hours into the nap.
NYTimes reader comments are worth reading. Most get that this is a person who worked harder than most of us, and still a member of “the precariat” (i.e. a precarious existence). The American Dream did not exist for Maria. She was paying $550/month rent for a Newark basement apartment she could not even get to for napping.
Some readers, though, noted she had four pets (wasteful, wasteful) and that unsecured gasoline container in her car. She brought on her own death through her own bad choices, according to these analysts of the American economic scene.
Cuz we all make such good decisions on 4-6 hours of interrupted sleep a day.
It’s why we allow airline pilots — and the 18 wheel rig driver who hit Tracy Morgan — to live like they do.
Speaking of favorite whipping persons, Greenie done got pantsed by Lawfare.
Surely our boy wouldn’t ignore well-known facts that conflict with his chosen narrative?
Well, actually, that’s precisely what he did.
I’m old enough to remember when contributory negligence was a relatively new and still somewhat controversial thing. Would be interesting to go back and look at the identity of the forces behind the movement. Is this something a bunch of wannabe Posners on state appellate courts dreamed up on their own, or did the push come from legislators bought and paid for by what we politely refer to as “moneyed interests?”
Respectfully submit that that’s in-house counsel’s job.
@burnspbesq: How, exactly, is that article a “pantsing” ?
Bring a case like this to any personal injury lawyer, even without a star, and they will be convinced they hit the jackpot and take it on a contingency basis. Someone is killed and has just lost a lifetime earnings? their family is devastated by the loss? deep pocketed defendant?? little or no contribution on behalf of plaintiff? this is a PI lawyer’s dream case and they will take it on contingency (their fee is 1/3 of the recovery) at no cost.
@Botsplainer: Thanks for the explanation. All of that makes sense; I guess it’s an open question how well it applies to the accident here.
The defense of no seat belts only applies (in California) to lessen the damage recovery. It is not classic contributory negligence (called comparative fault in California since it does not have to be all or nothing — the jury may find a % degree of fault and reduce the recovery based on that). The lack of seat belts had nothing to do with contributing to the accident, but it may have enhanced the damages. There is nothing wrong with the doctrine — it reinforces the use of seat belts.
How it should allegedly apply to limo occupants doesn’t make much sense, and as noted above, this is probably form pleading by defense counsel.
@burnspbesq: In California, the courts modified the contributory negligence defense which required an all or nothing approach so that the finder of fact would determine comparative fault and make an apportionment based on percentages. The contributory negligence defense was itself common law, so subject to modification by courts. At the same time they also modified traditional indemnity doctrine so that defendants could sue other co-defendants and apportion fault amongst them, rather than it being all or nothing under traditional indemnity doctrine.
In which Erik Loomis displays an appalling ignorance of fundamental principles of Constitutional law. Not even Cole would make this mistake.
Would you like to propose another term to describe a series of at least three posts which conclusively establish that Greenie has made assertions of “fact” that are demonstrably false?
Or is it your position that favored polemicists have carte Blanche to make stuff up?
There was an older line of cases here in Kentucky that deemed contributory negligence a complete bar to recovery, and there were a lot of gyrations about what was and what was not deemed contributory negligence. That softened at some point, and I remembered some cases where there were determinations as to whether it was 50%or more “caused” by the contributory negligence. Somewhere shortly before I started practicing, the standard became one where comparative fault was allocated among all parties to a piece of litigation. That may be what you’re remembering, geezer.
I see comparative fault as an improvement, in that it at least strives as a principle for an honest allocation.
@burnspbesq: You mean like the fact that Cody Poplin agrees with one contention of Greenwald’s assertion when he says, “In fact, everything about the group is there except the name Khorasan.”
Individuals who made a living in counterterrorism have been cited numerous times saying they had never heard of the KG.
GG is not saying there aren’t currently bad people existing in Syria, he’s saying the WH duped it’s ever available media “leaks” into hyping almost nothing into the most imminent danger imaginable.
The article you cite as pantsing does absolutely zero to establish the immediacy or threat level to the US from some disparate number of people we’ve known about for years.
Contributory negligence/comparative fault are affirmative defenses (i.e. use or lose) that have to be asserted from the outset by the defendant(s).
They’re about damage mitigation and reduction of any potential award.
Par for the course.
If you ask me, it is far past time that we get past that “use it or lose it” standard on affirmative defenses, and need to rewrite Rule 8 on that. I’ve seen cases where the affirmative defense didn’t really manifest itself until some time in discovery, and heard some cases cited in opposition to amendment (basically, prohibiting addition of defenses) that could wind up being problematic on an appeal.
Poorly worded and stupidly done but Walmart (gag) is not wrong. “Plaintiff contributed to his own injuries”, as has been said. They’re still on the hook as it was their driver working in violation of rules, of course, but everyone forgot it was one of their drivers that did this. Now they’ve reminded everyone again.
My BIL is a firefighter in Ohio and he has two terms for people who don’t wear seatbelts: hamburger or Jello, depending on their condition after the fact.
For those of you who are DKos readers, go look up “The Baculum King” and his stunning series of posts on what happens to cars that get hit by semis (he was a semi driver before deciding to blackmail a Vegas games of chance establishment and he had to leave and do some serious jail time). It changed my driving habits, that is certain.
When the iron laws of physics get applied to a collision, those results can’t be appealed.
Many tons versus a couple of them win every time.
@burnspbesq: Re-read the article. The law in question only concerns sales of the confederate flag by the State. Private sales and displays are unaffected.
Sister Rail Gun of Warm Humanitarianism
Ah, topic du jour has a legal theme. Good place to drop this, then.
Erotica publisher Ellora’s Cave sues Dear Author book blog
Since IANAL, I have no idea if this is even plausible, but does FX have any kind of interest in this case that would let them sue Wal-Mart as well? They had a contract with Morgan that can’t be fulfilled because of Wal-Mart’s (alleged) negligence, so would FX have any basis for a lawsuit of their own?
just goes to show … not even the 1% themselves are immune from corporate depredations anymore … corporations are not people my friends, they are Frankenstein’s monster …
Nothing to see here, this is standard boilerplate for any legal defense in an auto negligence case.
Too much of a stretch, they’re not a foreseeable party.
But the author is suggesting that it’s a step along the desirable path of banning the Confederate flag outright, which would clearly not fly constitutionally.
Has anyone found out for sure whether the limo-bus that Morgan was riding in even had seatbelts? Because I’ve been in ones which don’t have belts (not recent knowledge, but maybe 1/2 dozen years). Is there a law in California that actually requires them in all of these types of vehicles? Is there an applicable grandfather clause which applies to older or custom jobs? I’m asking because I only recall that all taxis had belts within the past decade. Limos are treated different from that IIRC.
As for the PR hit, Walmart is playing with fire here. I’m going to guess that they have forgotten that even in their lowest possible price market, they have competitors who would be happy to eat their lunch. Morgan, with his distinctive voice, could easily record ads before there are any settlement negotiations and paint a huge bullseye on those evil a**holes.
Read the comments. Loomis describes the First Amendment as an obstacle to be overcome in pursuit of an outright ban on displaying the Confederate battle flag.
On the subject of buses getting hit by semis, from Florida Man:
Paul in KY
@Elizabelle: RIP Ms. Fernandez. Fucking Republicans.
Paul in KY
@Botsplainer: Aren’t they, if Tracy was going to star in a show (that they paid him a big advance for) & now they have to rerun Cleveland Show in that slot (thus losing a lot of ad dollars)?
Apart from thinking about the proper usage of tumbrils (“a two-wheeled cart or wagon… in particular they were associated with carrying manure”)
Then, that means tumbrils could be used to carry Republicans.
@CONGRATULATIONS!: I had to learn to give semis a wide berth the hard way. Without injury to myself, fortunately, but the right side of my car was pretty badly damaged.
It was on a section of Interstate 495 in Massachusetts that was under reconstruction, and the lanes had all been diverted one lane to the right by Jersey barriers and painted lines. I was in the leftmost lane, with a semi to my right, and when all the lanes moved to the right, this guy decided to go straight, eliminating the space i was in (I would not be surprised to learn that he was severely sleep-deprived). My choices were to smash into the Jersey barrier or into the semi, and since I was in the driver’s seat on the left, I chose the semi.
These days, I endeavor not to be in that situation if I possibly have a choice.
@Roger Moore: He’s probably thinking of the German law against displaying the swastika, which this idea is pretty directly analogous to. But the German law wouldn’t pass muster in this country, regardless of merit.