Earlier this week the Internet was set to chattering after media reports that attorneys defending Walmart in the negligence case filed against them by Tracy Morgan were blaming the popular comedian - at least in part - for the injuries he had sustained after one of its trucks struck the van Morgan was a passenger in because he had not been wearing a seat belt at the time.
The well-publicized accident occurred in New Jersey on June 7, 2014. Morgan and companions had been traveling on the New Jersey Turnpike when the Walmart truck struck their vehicle. Evidence suggests the truck's driver may have been overtired and had briefly nodded off before the collision. Morgan was injured badly, as were others in the van, and an additional passenger died.
As a result of the accident and injuries, Morgan and two of the passengers soon filed a lawsuit against the prolific retailer, alleging the company was careless and negligent in the ownership and operation of their motor vehicle. As part of the case, their attorney filed a complaint in New Jersey federal court that lays out the bases of their injury claim.
Given the former "Saturday Night Live" cast member's celebrity status and the details of the incident, it's no surprise that the general public considers Walmart's defense plan both absurd and appalling. But if Walmart's attorney had failed to include this point in its "affirmative defense," he would have been negligent in his duties.
Like it or not, the so-called "seat belt defense" is a recognized one in New Jersey, and it is an extremely important part of this case. Under the Federal Rules of Civil Procedure, in responding to a Morgan's initial complaint, a party must respond with an "affirmative defense," including what's known as "contributory negligence," (F.R.C.P. 8).
In this case, Walmart filed an "answer," that detailed "affirmative defenses," that listed Morgan's "negligence" in failing to wear his seatbelt as contributing to his injuries.
Most states do not recognize the seatbelt defense and view the failure to wear one as secondary to the defendant driver's actions. At last count, more than 10 states have allowed some kind of seatbelt defense, and New Jersey, where this case was filed, is one of them. Even in the Garden State, however, there's no specific law that makes the seatbelt defense acceptable, but the New Jersey Supreme Court has said that this is, in fact, a valid defense [Waterson v. General Motors Corp, 544 A2d 357 (1988)].
All that is to say that if the defense can show - by competent evidence - that Morgan's failure to wear a seatbelt caused any part of his injury, the eventual award will be reduced in proportion, potentially saving Walmart a bundle should it lose the case. For example, if a jury awards Tracy Morgan $1 million for his injuries in this case, but estimates that his failure to wear a seatbelt contributed, say, 15 percent to his injuries, he would get only $1 million minus 15 percent, which is $850,000.
The public policy behind such a defense is clear - and logical when you consider that New Jersey's mandatory seatbelt law was designed to save lives and reduce injuries, and not wearing one is therefore a primary offense (NJSA 39:3-76.2e et seq). If you can be stopped and ticketed solely for not wearing a seatbelt, the logic can and should extend to the use of the seatbelt defense.
The fact that Morgan and his companions were passengers in the van does not negate their legal obligation under the safety law, which includes vans as well as cars in its definition of passenger vehicles.
All that said, Walmart has the right to raise the defense. That it followed best practices in this case should not come as a surprise to anyone, least of all Morgan's attorneys. It's safe to suspect that their stunned reaction is rooted in strategic posturing in the first step of well-funded litigation that could go on for years. Each side will - and should - use every legal tool available to them on behalf of their clients.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
