Suit against Walmart in Tracy Morgan crash claims carrier violated hours rules, ‘negligent’ in oversight

| July 14, 2014
A 3D laser rendering from NTSB of the two key vehicles involved in the June 7 crash.

A 3D laser rendering from NTSB of the two key vehicles involved in the June 7 crash.

Four survivors of the June 7 New Jersey Turnpike truck crash that left comedian James McNair dead and actor Tracy Morgan in critical condition are suing Walmart Transportation, claiming the private carrier was “careless and negligent” in its oversight of drivers and equipment, which led to the crash, the lawsuit alleges.

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A preliminary report about the fatal high-profile Walmart crash that killed comedian James McNair and severely injured actor Tracy Morgan concludes Walmart driver Kevin Roper ...

Tracy Morgan is among those suing. The suit was filed July 10.

The Walmart driver, Kevin Roper, reportedly was awake for 24 hours prior to the crash, though the National Transportation Safety Board in its preliminary crash report said he was within his hours-of-service limits, both in on-duty time and in driving time.

However, Roper had to commute in his personal vehicle 700 miles to the Walmart terminal in Delaware where he worked, the lawsuit notes and news outlets have reported. During the commute he was not on-duty. 

The lawsuit stems from Roper’s odd commute, alleging “Wal-Mart knew, or should have known, Mr. Roper was awake for more than 24 consecutive hours immediately before the subject accident.” The lawsuit alleges Roper fell asleep at the wheel, ultimately leading to the crash.

Walmart issued a statement responding to the lawsuit, saying it is cooperating with the investigation and is “committed to doing the right thing.”

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“This has been a terrible tragedy,” the statement says. “We wish Mr. Morgan, Mr. Fuqua Jr., and Mr. Millea full recoveries. Our thoughts continue to go out to them, their families and friends, as well as to the families and friends of everyone involved, including Mr. McNair who lost his life. We are deeply sorry that one of our trucks was involved. As we’ve said, we’re cooperating fully in the ongoing investigation. We know it will take some time to resolve all of the remaining issues as a result of the accident, but we’re committed to doing the right thing for all involved.”

The suit also accuses Walmart of intentionally and regularly violating federal hours-of-service limits for drivers, saying it “condoned this practice of its drivers routinely violating” federal rules.

The private fleet also failed to factor in driver commutes into its scheduling, the suit claims.

“Wal-Mart had a custom and practice of recklessly and intentionally allowing its drivers to drive for prolonged and unreasonable periods of time, making them exceedingly vulnerable to suffer from fatigue,” the suit reads, adding that it also “recklessly and intentionally failed to take proper measures to combat” driver fatigue.

Lastly, the suit alleges the Walmart truck involved in the crash was equipped with an autonomous braking system, which did not deploy prior to the accident. Walmart “knew or should have known” the autonomous braking system was “compromised,” the lawsuit claims.

In addition to Morgan, comedian Ardley Fuqua Jr. is a plaintiff, along with Morgan’s personal assistant, Jeffrey Millea, and Millea’s wife Krista. The group — along with two others, including James McNair — were traveling in a Mercedes Sprinter van from one comedy show, where they were performing, to another.

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With several news reports suggesting its driver had been awake working for 24 hours prior to the accident, Walmart spokesperson Brooke Buchanan issued a statement ...

They’re seeking actual, compensatory and statutory damages, punitive damages and attorney’s fees and court costs.

Roper has been charged with counts of vehicular homicide and assault by auto, to which he has pleaded not guilty. NTSB’s report concluded that Roper was traveling more than 20 mph over the posted 45 mph speed limit.

The crash also made the debate over the 2013 hours-of-service rule a national issue, causing lawmakers and celebrities to condemn Senate action in June to rollback certain HOS regs.

The Senate’s annual Department of Transportation funding bill includes an amendment that would suspend two of the 2013 rule’s 34-hour restart provisions, including the once-per-week limit and the requirement that the restart include two 1 a.m. to 5 a.m. periods.

New Jersey Senator Cory Booker proposed an amendment to strip that amendment from the bill. However, the bill has been idle in the Senate for nearly a month now.

  • Mark Hayward

    Ultimately it boils down to personal responsibility. Maybe we need a D.O.T. agent to ride in each commercial truck and fill out his log book for him .. and keep track of his miles and tax each truck on a per mile basis. Seems like something our Federal Government would like to do.

  • Mark Hayward

    In the past it was not practical to monitor every 4 wheeler, but today they could monitor a 4 wheeler every mile either from your smart phone or from Onstar ect.

  • Jack Simon

    Please indicate the section of the DOT regulations that state a driver cannot drive their Personal Vehicle and then drive commercially? I seem to have missed that section.

    There is NO regulation prohibiting that, but it is not good practice IF he did it. He was shown to be in compliance according to his commercial logs. I am sure that a new flurry of regulations that have drivers further regulated because of a single crash where they are allowed to pry into our private lives which will make it less profitable to drive a truck and will either drive up freight costs to get safe drivers that are willing to have their movements monitored 24/7 or cause a REAL driver shortage.

  • meatmeat

    Ur rite and he will be questioned an judged on facts and actual law and regulations as of the time the wreack happen.. and can not be punished for his moral judgements if he was up that long.. niw they can u it in a civil suit against him but they want wal-Mart not thr driver…

  • Donald Rich

    I know Wal Mart pay’s good. But who in their right mind drives 700 miles to goto work.

  • Patty Cakes

    Friend, that ” private life ” threshold was crossed in 1990 … the year of the beginning of the demise of the trucking industry.

    Many old fools insist that ‘ deregulation ‘ was the end of the trucking industry … ‘na … 1990 and the institution of the ” CDL ” was the end !

    ………… the CDL, what a frikken’ scam !

  • Non trucker

    Has any looked at the possibility the van was not in compliance with the rules & regs. I have seen those types of buses cut trucks off. May be more to the store. Truckers are not always at fault but get the blame.

  • lori

    I agree…walmart or any other company, for that matter, can’t possibly be responsible for what it’s drivers do on their own personal time. We are, after all, adults…however, here’s the way I see it…If walmart, or any other company makes employees feel forced to do things like work when tired etc, then that company should be held accountable…

  • Glitter

    Actually, if you look, when you are in your personal vehicle, that vehicle becomes a CDL car. If your on a bike or in a little red wagon, same. You dont have a personal license anymore. You have a CDL which makes ANY THING you operate a CDL vehicle, therefore, same rules apply.

  • Kimberly averys

    The driver should of never been behind the wheel he should of taken a 10hr break when he got to his trk plain and simple if u need someone telling u that u need to take a break or telling u no u have to drive then u don’t need to be a driver or working for that company

  • annonumus

    the thing is he drove 700 miles in a personal then went on duty driving in this case i drive truck to my house for that reason this way i dont have 140 miles to commute and if i get tired i pard that driver was stupid and should be thrown in jail for man slaughter and attempted they have electronic logs. there is never enough money to make me drive tired

  • annonumus

    there is a rule in your dot hand book that says fatigue driving is wrong i got hit by a driver that was fatigue and all he was doing was backing out of a parking spoit i was parked there for 2 days

  • Jack Simon

    Again; please cite the DOT regulation that makes your post correct. Again, THERE IS NONE.
    When you are driving your car to and from work you are in a personal conveyance, NOT a commercial for hire vehicle and are not subject to DOT regulations on the time you can drive. When you switch to a commercial for hire vehicle, the DOT Regs kick in and not until then.
    There is the LEGAL matters that should be considered and then the COMMON SENSE matters. Is it illegal for the man to drive for 10 hours in his POV and then drive another 10 in his commercial vehicle – YES. Is it common sense to do so – NO.

    Don’t confuse the two. I see further regulations coming on that will change this and drivers will have to log their time 24/7 in order to be a commercial driver.

  • Jack Simon

    That’s because Walmart is the boogey man with deep pockets and the guy behind the wheel is just a regular joe that made a mistake that cost someone their life and doesn’t have a lot of money. Eventually they will pick his pockets when their suit against Wally is tossed out or negotiated.

  • Jack Simon

    You have no idea of what the DOT does because you don’t drive commercially – it’s apparent by your comment.
    The government DOES have an agent in our truck. It is called an EROB that tells us when we can drive, when we have to take a break, when we have to sleep. . .
    We DO pay taxes on every mile we drive through every state and are required to file a report quarterly and pay road taxes for the miles – read up on IFTA to see what we are required to pay.

    Get informed, or drive a truck and try to keep up or just stop commenting.

  • Jack Simon

    You are confusing commercial driving with personal conveyance. You aren’t a driver or are a wannabe driver with so little experience that you would be considered a danger to yourself or the public behind the wheel. Drivers don’t have to log their time behind the wheel of a personal not for hire vehicle.
    Do you think that the huge motor homes hauling huge trailers are subject to DOT regulations? NOPE, they can run around driving for 2 days straight and no-one will question them if they are involved in a fatal accident. The insurance company pays off and nothing is done.
    Why can 4 wheelers drive for a couple of days on coffee and energy drinks and get away with it? Don’t they get tired like a commercial driver? Why don’t they have to fill out log books and have EORB’s in their cars?

  • David Jesse

    Look up 395.1 section j on travel time , they didn’t follow the rule . If he didn’t have a hotel recipt ,then all that time driven from his home is on duty not driving . He should have gone on a 10 hr break before driving . Wal mart looked the other way

  • Robert Mcnealy

    No you have to be able to travel home get real the only thing is a DUI only requires . .04 to get a DUI if what you are saying is true a commercial driver could not go home until taking 10 hour off after an 11 hrs of driving quit spreading bad info

  • Robert Mcnealy

    Based on the info on hand this case should be dismissed.

  • Ken

    There is a regulation that states of was paid to drive his personal vehicle then those hours must be logged. Also if the drive was work related and drove 11 hours then he must take required 10 off before driving the truck.

  • RDT888

    As a trucker what most dont care to realize it is the drivers responsibility to ensure they have enough sleep prior to leaving. If its 700 miles to terminal u leave the day b4 to allow sleep prior to dispatch. Walmart does not babysit their drivers off time…..also they equip ALL THEIR TRUCKS WITH ELECTONIC LOGS….also what most people do not realize is there is a 14hr clock we are confined to with 11hrs of driving only…traffic jams, accidents or the idiot holding up THE TRUCK LANES when no one in the “cars only lane” counts against that and cause drivers to rush when they get behind cuz guess what IT COST MONEY TO EVERYONE WHEN WE ARE LATE DUGH…

  • RDT888

    What u dont realize is the bew laws make “napping” impossible becuz of 14hr clock

  • LuckyRavein

    Ok so l’m second generation trucker when I got my CDL an saw my dad he said ” Congratulations if you ever have an accident its now your fault. YOU ARE THE PROFESSIONAL. So you are responsible. ” I agree withbthe others questioning weather or not the limo driver was in compliance we haven’t heard anything about that yet.
    but the big thing is and mabey its old truckin way of thinking.
    BUT
    No company can punish, discipline, or take retaliation against a driver for not driving due to unsafe driving conditions ie fatigue, illness, poor weather, vehichle condition unsafe or hours of service compliace its in you FMCSA Handbook. It’s worded differently but you get the point.
    This is the law a company Iwas working with tried to write me up for refusing to drive this past winter due to severe weather we had (PA) I fought it and won still work there and they had to change there driver handbook.
    The biggest problem is most day trip drivers I know (as. Well as other drivers) don’t know there own right and they think the company can “force” them to do thigs YOU are the driver its your responsibility whether you work for Wal-Mart or the MomAnPop the rules and your right are the same if you are not safe don’t get behid that wheel.
    Keep the rubber side down.

    LuckyRavein

  • RDT888

    Sorry glitter u have no clue…I own my truck and my authority insurance etc…when I am driving my Truck minus the trailer it becomes my privately owned vehicle to do or go where I want just like my car and do not have to log anything if no money being paid

  • RDT888

    And as far as the celebrity band wagon of wanting to get involved with our hours of service resets is ridiculous. The 1-5am requirements are a joke I have personally had to sit for over 48hrs to get a 34hr reset cuz I got to truckstop at 236am on monday but had to complete 2 consecutive 1-5am slots so could not roll till 5am Wednesday. I lost money trying to get hours. Also the state of Illinois gives a discount to the trucks on the toll roads during those 1-5am hrs because they feel its safer and causes less congestion. Damn shame a State is smarter then our supposed government

  • mike gomes

    lmao.. getting a roadside inspection on my cbr 1300… roflmao.. catch me d.o.t.!!!. some of you guys are scary…. oh ohhh.i didnt log the drive to grammas house…u think i need a ifta sticker on my crotch rockect?. … whats the legal weight on motorcycle axles???…….come on buddy…put the beer down ..turn around walk away…slowly..it will be ok.

  • RDT888

    How is Walmart supposed to babysit 1000+ drivers off time…how are they supposed to know when the driver left his house in his CAR last time I checked dont have logs on cars…and whos to say driver did not stop and sleep in his car anywhere between home and terminal or a friends etc… and yes there are unsafe truck drivers out there but they are referred to as steering wheel holder for a reason… very few actual truck drivers on roads now

  • mike gomez

    hhmmmm??? maybe all the public should have log books..bet theres alot of peeps outthere who leave their 9-5 job and go home and pack to drive all night to go on a vacation.. stupidity is dangerous..common sense is a blessing..

  • brad

    I don’t think this would have happened under the old split rules.Once the clock starts you cant stop it pushing every driver to the limit in most cases even if they are sick or just don’t feel well.I don’t think the truck would have been there if given the option to take a nap even if the driver was up twenty four hours before.I do agree this law suit is going to open up a storm of new regulations that treat us all like criminals.

  • kennetj

    I thought they said he sent message from his personal car saying he was up for awhile already.. they should of never gave him a long mile run.. so he wouldnt be that tired.. its on both the driver and company..

  • kenneth

    Only while working .. not on off duty… your trying to tell me if i take my kids to texas from tennesse i hv to log it.. no dont think so.. ive been driving a trk for 15 yrs.. no tickets accidents or points on csa.. some poeple have to learn to say no..

  • kenneth

    Well the driver is wrong for speeding..and not being rested up.. but if they can prove he did tell walmart that.before he got in that truck.. both are screwed.. another case of company having a i dont give dam attuide ..

  • Jack Simon

    Right, driver is wrong for speeding. He is not in violation of his commercial logs, per the FMCSA and cannot be charged for that.

  • mousekiller

    700 miles in 24 hrs is easy in any vehicle and still get rest. I think some of that is bogus made up stuff due to some piss poor journalist that knows zero about trucking.

  • mousekiller

    Again that 700 mile stuff is used hay already thru the horse once. We do not have all the information and some are judging this driver based on poor journalism and speculation and innuendo. He may have been visiting family as we all do now and again. Quite possibly the so called reporter over heard part of a conversation between two people and thought it sounded good ,Lets blame the trucker mentality at work again..

  • mousekiller

    It seems that everybody is out to blame the driver using the FMCSA logic. HOS .EOBR. Mileage vs time vs personal use.
    What a bunch of crap is being spewed in comments. Do you really think the EOBR had anything to do with this? NO It could be and I say could be he had his attention elsewhere and not on the road for a few seconds. Then the accident. Nothing to do with hours. distance or family. So until you all get the facts, and those will be given the light of day in court, stop the judging of this man. Speeding is something we all do once in a while for various reasons and those that say they don’t are liars …

  • Denominator

    No…its still 0.08 bac in your personal vehicle. .04 bac is just in a CMV

  • sthomas1957

    The driver had only 30 minutes left on his 14-hour clock. So we know that he’d been up close to 14 hours already. In addition to that, he commuted from his home in Georgia to his facility in New Jersey to report to work, a trek that has been reported as more than 700 miles. Even if he’s averaging 70 mph to get to Wal-Mart, he’s still up an additional 10 hours there. If he had no rest time between reporting to work and leaving on his run, then he’d been up for at least 24 hours if not more.

  • sthomas1957

    Wal-Mart should be requiring its drivers who live 700 miles away to take a 10-hour rest break once reporting to the terminal in person.
    Example: If you live in southern Georgia and work out of a Wal-Mart facility in New Jersey, and if you show up at 7:00 pm at the terminal, you’ll be ready to be dispatched at 05:00 a.m.
    If you don’t like wasting 10 hours resting before going on duty, and if you want to work out of New Jersey, then move to New Jersey.
    Any driver living further than, say, 200 miles from his or her terminal should be required by the company to log that time as on-duty, with the 14-hour rule beginning at the time of the commute.

  • sthomas1957

    It’s already in the regs. You’re not supposed to be reporting to work if you’re not fit to drive. Commuting 700 miles to work — at least 10 hours straight on duty — renders most of us not fit to drive more than a couple of hours. It impairs our judgment and makes us want to go 20 mph over the speed limit through work zones.

  • Mars Evony

    WRONG! It is .04 Regardless of what you are driving ask any attorney

  • Justin ‘Flyin J’ Simpson

    Circumstantial evidence and allegations, none with any solid backing behind them, nor the means to find it. Who the hell is going to work at a job where you need to drive 700 miles each way to get to and from???

    Just another example of the “deep pockets” image of the industry.

    Plus if one thing is good for one it should be good for the other. If it’s so criminally negligent to let a truck driver operate ridiculous hours then why isn’t it in a car?

    Sounds to me by the lawsuit claims that the driver of the car is hiding guilt by trying to pass the buck. That is the way of the world nowadays right??? Screw up and blame the truck driver for a mistake you made that causes loss of life. Destroy a loving family that deals with only being complete a few times a month while everybody else goes home to sleep in their own bed just to save face??? Sounds legit considering the wonderful society we’re forced to live in. What the hell is freedom anymore anyway.

    I don’t want to live on this planet anymore.

  • James

    See-THAT’S the problem. He was deemed legal according to the rule of law,but the law doesn’t control what a driver does with his time BEFORE he starts driving. So NATURALLY,the Feds will have to create MORE laws that over-step into a driver’s OFF duty time.
    I say the driver violated the rule of COMMON SENSE by commuting that distance (I’d have taken an RV trailer and rented a space in an RV Park near the Terminal to sleep,and gone home on my days off.) he should pay for that mistake,but the laws truckers have to deal with are stupid enough to begin with;they shouldn’t put any more pressure on the truckers with more BS rules. Which reminds me-Why are these laws that truckers are required to comply with not WRITTEN by truckers? Who knows better than a trucker what can get the best results out of the trucking industry? You guys and gals deal with the good and bad ideas-turned-laws daily,and find ways to get the best possible results with the laws you’re given. I’d say that qualifies you to give the law-writers your input and they should listen and pay attention.
    Just my two cents worth
    Speed

  • Jim

    It is in section 395 under travel time to work. All travel time going to your work destination must be logged on duty.

  • Interested Person

    How would a company know if a driver was ready to drive or not? Would they take their word or have a place that all drivers would have to be in solitary confinement until a dispatcher or an authority felt they were ready to drive? Say at least a 10 hour bedtime under strict supervision by a company employee.Just a thought.

  • Interested Person

    What if he moved and didn’t tell anyone. Should walmart be responsible for that?

  • Interested Person

    I have been driving over 50 years and I can take a 15 minute nap and drive fine. (Done it many times when the regs were a lot less) I have one speed and have practiced it all these years (had a good teacher) the speed limit or less. Seems to work fine for me. I don’t know what happened and dare say most don’t know because we were not there at time of accident. I do agree with some that the feds will use this as a punching to get at the trucking industry. It seems the feds are always looking for something to further their cause. I am for safety but not everything the feds come up with promotes safety. Sometimes I believe it is about more revenue. Just a thought

  • Tom AndSheila Hurd

    This is a good thing, anything that makes driving more restricted and more difficult will force drivers out and drive rates up, and I am all for higher rates, Lets face it, when any joe can go to a truck dealer and be in a truck the next day with no money down hauling for xyz trucking the rates drop because they will haul for nothing to make sure they have something to do and have no clue what they need to make to survive, make it difficult and it will drive out the rate choppers.

  • Mark Hayward

    I am pretty much familiar with the whole load of BS that you deal with. I am a Commercial owner Operator, but I stay with in 90 miles of my base. Some of my trucks don’t even have License plates because I spread lime for farmers in their fields. I have filled out log books on longer trips before but never dealt with EROB. I was basically aware of EROB but have never used it personally. You missed the fact that I was being sarcastic about the whole thing. I also commented drive till you are sleepy then take a nap, then drive again.
    Some one replied to me that doing it that way is not Legal. I know it’s not legal that way. I was just saying it’s a better way to do it. When you are sleepy taking a nap really does help.
    As far as driving goes,, I know what I can and can’t do from taking long road trips in a 4 wheeler.. It’s a lot less stressful when you don’t have to document every mile and live in fear of being pulled over and fined or loose your license.

  • Mark Hayward

    Most Drivers are baby sat in their off time in one small way. it’s called drug testing. Beyond that it would be hard to keep track of their sleeping habits.

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