Thursday, October 2, 2014

Tracy Morgan and the Eggshell Skull Rule

     The law gets a bad rap, but has its fascinations.
     For instance, TV comedian Tracy Morgan and five other passengers were in a Mercedes limousine that slowed because of traffic congestion on the New Jersey Turnpike June 7 and was rear-ended by a Walmart truck.  Morgan's friend, James McNair was killed, and Morgan, who starred on NBC's Saturday Night LIve and 30 Rock, was badly injured.
     Before rear-ending the limo, the driver of the Walmart truck, Kevin Roper, made several mistakes: he was traveling at 20 miles per hour over the speed limit, according to the National Transportation Safety Board's investigation. He ignored warning signs. And he had been driving for nearly 14 hours, the federal limit.
     The driver faces several criminal charges, including vehicular homicide and Morgan of course filed a civil suit. 
     A layman might be forgiven for assuming Walmart would just hand Morgan a blank check at this point. But that isn't how it works. The law is a battle. Parties clearly in the wrong—particularly giant corporations in the wrong—must mount a defense, and it should be no surprise that Walmart lawyers are seeking to pin the blame on Morgan, saying his injuries were  "caused, in whole or in part, by plaintiffs' failure to properly wear an appropriate available seat belt restraint device"and so, by not wearing a seatbelt "acted unreasonably and in disregard of (their) own best interests."
     News reports focused on Morgan's incredulous response.
     But I was more interested in what the law says. 
     At first blush, it would seem an 0pen-and-shut case.
     There is a queasily-named principle in law called "The Eggshell Skull Rule" that says, in essence, that a person who does wrong is responsible for any harm done to a person, even if that person is in an unexpectedly precarious state. "A defendant takes a plaintiff as he finds him," is the way it's usually phrased; meaning that you are on the hook for the injuries you inflict, even if they could not be foreseen. Morgan's carelessly being in a vulnerable, seatbeltless position shouldn't matter. Heck, if every evening I bathe in a tub filled with gasoline, and you malicious toss a lit cigarette into my open bathroom window, assuming the tub is filled with water, you are responsible for my horrific burns. That bathing in gasoline is stupid doesn't enter into it (the "eggshell skull" comes from another hypothetical. If I push you down, and your skull shatters because it's an eggshell, I've murdered you. The argument that a person with such a skull shouldn't go around without a helmet doesn't score many points in court).
     Unless it does. Walmart has to offer some defense, and in making the motion pinning the blame on Morgan, it shows that it is not going to roll over and pay whatever staggering, eight-figure settlement the TV star is hoping for. Walmart has deep pockets, and part of any lawsuit such as this is the filing of endless motions and continuances, the displaying of the legal fleet, as it were, to try to instill fear and expense, grind down the other side and reduce their expectations. 
     As with any situation involving law, it gets more complicated than that. Different rules come into play, and it is up to a judge and jury to decide which ones apply. For instance, there is a concept known as comparative fault, which is the new term applied to what was once called "contributory negligence" (in essence,the idea that if you've somehow done something to contribute to your injury, like not worn a seatbelt, you can't collect damages). 
    Only four states adhere to the idea of contributory negligence, and New Jersey isn't one of them. New Jersey does have a rule about comparative fault—the "51 Percent Bar Rule" that says if a plaintiff is more than half at fault in a situation, then he can't collect. 
    Which means that Walmart has to convince a jury that an exhausted, speeding, heedless truck driver is less at fault for Morgan's injuries than the comedian himself is, for not wearing a seatbelt in the back of his limo.
    A tall order. It isn't quite saying that you're at fault for not wearing a bulletproof vest when I shot you, but in the same ballpark. Or at least that's what I would argue, were I Morgan's lawyer (or, more likely, lawyers). 
    But wait. It gets even more complicated. Bathing in gasoline or having an eggshell skull are not crimes. But riding in a car without wearing a seatbelt is.  In 2010, New Jersey passed a law that all passengers, front and back, must wear seatbelts. A Walmart lawyer could argue that Morgan's commission of a crime, minor though it is, reduces the damages he could expect. He is like a burglar who breaks into somebody's house and then drowns in the whirlpool tub. Even if a jury decides that the fault is 10 percent Morgan's, that's 10 percent shaved off the top of a judgment certain to be in the millions. A Hail Mary pass worth trying. 
       Then again, speeding is also a crime, as is vehicular homicide.
       You get the point. It's all moot anyway because Walmart, shying away from the continuing bad publicity involved with its reckless employee injuring a popular entertainer, will no doubt, after showing  the stick of its legal muscle, choose the carrot of  some never-to-be-disclosed settlement. Morgan, tired of the whole ordeal and eager to get on with his life, will no doubt take the money.  Still, it's interesting to think about. At least I hope it is.
        Then again, I'm not a lawyer, and I know many readers of this are. Am I missing something here? 


  1. Typo: "reckless employee inuring a popular entertainer" -- I think you meant "injuring"

    1. Yes, fixed now. The drawback of writing something and not then reading it.

  2. This essay should be required reading in Torts 101.


  3. Neil, I think you made a big mistake in the second to last column when you said that Walmart will shy away due to the bad publicity.

    Far from it. If I ran Walmart (and you, and many of your readers I would guess) and something like this happened, you would pay everyone off as soon as possible so you could bury any bad publicity. But no, the greedy bastards want to settle for as little as they can, bad publicity or no. This motion wasn't made to get the case settled, it was made to show that they're in it for the long haul.

    1. I believe you're right. I wasn't thinking about what kind of back woods hardasses the Walmart folks are. If you are willing to lock your own employees in your stores and treat them as indentured servants, what's dragging one entertainer over the legal coals?

    2. I am not a corporate shill, but the monetary demands made by the lawyers for the people in the limo may be unreasonable. It is their job to be greedy, too.

  4. Eggshell plaintiff refers typically to the condition of plaintiff rather than his behavior. Bathing in gasoline was an exaggeration of condition that I would love to show a jury. If you had a congenital condition making your bones susceptible to breaking more easily, I'm more apt to offer a check.

  5. Same thing going on in Pennsylvania rape case where State is using comparative fault against civil suit. Done everyday by attorneys without concern for emotional charge it leaves. These defenses can be considered waived if not asserted early in case, so they are before all evidence gathered.

  6. Pretty good analysis of the situation. Wal-Mart's liable, but should have its obligation shaved some due to Morgan's comparative negligence. Eggshell rule doesn't apply because (as Joe noted above) it relates to condition, not behavior.

    1. That's what my wife, a lawyer, also said. But I thought the rule was cool -- that's why I wanted to write the piece -- so brought it up anyway.

  7. That was a fairly great analysis of the contributory/comparative negligence. Brought back happy memories of my torts class last semester, which I found fascinating.

    The egg-shell rule isn't really the same specific topic, but is interesting none the less. How they calculate the comparative fault of the plaintiff is up to the jury- how do you decide what his damages would have been had Mr. Morgan not been negligent per se in not wearing his seat belt. (That's assuming that it is illegal to not wear a seat belt in the back seat of a limo in NJ.)

    As mentioned above, the lawyers for Wal-Mart absolutely have to bring this up as a defense in their answer- otherwise they lose it, and when they sit down to settle this case, it won't be a factor.


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