Several months ago, actor/comedian Tracy Morgan and several others filed suit against Walmart in a New Jersey federal court after he was involved in an accident with a Walmart truck on the New Jersey Turnpike which left one person dead and several others seriously injured. The suit alleges that Walmart driver Kevin Roper had been awake for more than 24 consecutive hours when he crashed into the side of the limousine van carrying Morgan and several others. Further, Roper was allegedly so fatigued that he fell asleep at the wheel prior to impact. According to the investigation conducted by the NTSB, Roper was travelling 65 mph in a 45 mph zone. He has pleaded not guilty to death by auto and assault by auto charges.
Last week, Walmart filed its answer to Morgan’s complaint and, needless to say, it caused a bit of an uproar. According to a report from the Hollywood Reporter, Walmart’s answer contains nine affirmative defenses – most of which are fairly typical in personal injury lawsuits (i.e. failure to mitigate damages, punitive damages are unconstitutional, et cetera). One of those affirmative defenses, however, prompted much criticism. Specifically, Walmart alleged that the plaintiffs’ injuries “were caused, in whole or in part, by plaintiffs’ failure to properly wear an appropriate available seatbelt restraint device.” The media focused upon this defense and accused Walmart of a blatant “blame the victim” campaign.
Likewise, Morgan himself responded in a statement, “I can’t believe Walmart is blaming me for an accident that they caused.”
We here at Abnormal Use do not know the merits of either side of this case; however, we question the national lynching of Walmart at this early stage of the litigation. Is Walmart attempting to shift all or some of the blame to the plaintiffs? Certainly. That is the very nature of an affirmative defense. Should Walmart be publicly criticized for it? Absolutely not. Under New Jersey law, all passengers of a motor vehicle are required to wear a seat belt. N.J.S. 39:3-76.2f. Unlike some jurisdictions wear the use of a seat belt is inadmissible in a civil action, in New Jersey, evidence of nonusage of a seat belt is a comparative negligence issue and is admissible on issues of whether the nonuse increased extent and severity of injuries. As such, Walmart is raising a defense which it is entitled to raise by law.
We can certainly appreciate the sentiment that pleading the failure to use a seat belt “looks” bad when compared to the alleged negligence of the truck in this case. However, Walmart is acting fully within the laws set forth by the State of New Jersey in its pleadings. If the plaintiffs’ injuries could have been lessened or avoided altogether by using a seat belt, then Walmart is entitled to have that matter decided by a jury. This isn’t a matter of Walmart claiming that Morgan and the other plaintiffs caused the accident itself but, rather, that perhaps some of the injuries could have been avoided if the plaintiffs had also followed the law. Again, if the case goes to trial, a jury may determine that the defense is not applicable and award the plaintiffs sizable damages. But, it is completely unfair to chastise Walmart for raising the matter as an affirmative defense in its initial pleading. As with any affirmative defense, if Walmart didn’t plead the seat belt usage defense, then it would be forever waived. If discovery reveals that the defense is groundless, then Walmart can always withdraw it.
We wonder if the media would report on that development.