In June, a Wal-Mart truck driver who had been awake 24 hours caused a deadly pileup in New Jersey. The Wal-Mart truck driver’s Twitter profile included the phrase, “move or get hit.”

Since that crash, most of the attention has been centered on comedian Tracy Morgan because he is most well-known. However he is not the only one that was affected by the incident.

The adult children of James McNair, killed in the June crash in Cranbury that injured comedian Tracy Morgan and others, are moving forward with their suit against Wal-Mart and its truck driver. Wal-Mart owned the truck that authorities said caused the crash and employed Kevin Roper, the driver that had been awake for 24 hours when the crash occurred.

While Wal-Mart claims that its driver was within the legal hours of service, the Federal Motor Carrier Safety Regulations go beyond just a mechanical application of the hours of service rules.

49 C.F.R. § 392.3 provides that, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”

Thus, if a driver has been awake for 24 consecutive hours, the impairment from fatigue may trump an assertion that he was only driving 11 hours and on duty 13 of those hours.

49 C.F.R. § 390.3 requires that “every employer shall be knowledgeable of and comply with all regulations . . .  applicable to that motor carrier’s operations” and just as importantly, “every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations….”

So a company is responsible for making sure its driver know the rules and comply with them.

49 CFR 390.13 mandates that companies not “aid, abet or encourage drivers’ violations of regulations.” Therefore, if a company pushes drivers to perform beyond the limits of fatigue, it has a problem.

There seems to be no limit to the ways a company can make a show of conforming to safety rules while actually turning a blind eye to safety. The reality of a company’s safety management and culture is always subject to scrutiny. While Wal-Mart has cultivated an image of a relatively safe trucking operation, investigation of this case will probably turn over a lot of rocks.

In cases we have had with Wal-Mart in the premises liability context, we have found an interesting contrast between pretense and reality regarding safety practices.


Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Preparation & Practice, he is a board certified civil trial attorney of the National Board of Trial Advocacy.