Tracy Morgan's Injury Claim: The Affirmative Defense

Joe Di Bartolomeo
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Joe Di Bartolomeo is a top rated personal injury lawyer helping Oregon and Washington families
Posted on Oct 01, 2014

Comedian Tracy Morgan’s litigation against Walmart is getting lots of media attention. However, the truth is Mr. Morgan faces many of the same challenges everyday people do when seeking compensation for serious injuries from truck collisons.

The latest round of media coverage highlights Walmart’s defense that Morgan, by not wearing a seat belt, was negligent in causing his injuries. This was just one of several defenses asserted by the retailer in response to claims arising from a serious collision on the New Jersey Turnpike that left Morgan and others seriously injured, and another man killed. In making this defense, Walmart is claiming that Morgan failed to “mitigate” his damages.

Walmart is asserting an “affirmative defense.” An affirmative defense is not a direct denial of the allegations Morgan made in his lawsuit against Walmart, but instead, new allegations directly against Morgan. Walmart is claiming that Morgan's carelessness caused his injuries, and in making this claim, Walmart has to back it up with proof.

Walmart’s affirmative defense is called “comparative fault.” In other words, Walmart is pointing the finger at Morgan, claiming that by failing to wear a seatbelt, Morgan was negligent in causing his injuries. If a judge agrees there is enough evidence for a jury to consider this defense, then the jury must decide whether Walmart was negligent, but also must decide whether Morgan was negligent as well. If a jury found that both parties were negligent, then it would have to assign a percentage of negligence to each party.  The jury is comparing fault, hence the name of the defense.

In Oregon, any percentage of fault assigned to a plaintiff claiming damages results in a reduction of the damages the jury sets in its verdict. For example, if a jury finds that a plaintiff is entitled to $100.00 in damages, but also decides that the plaintiff was 20% at fault, then the net recovery to the plaintiff is $80.00. However, Oregon also puts a limit on the plaintiff's recovery. If a jury finds that the plaintiff is more than 50% at fault, then the plaintiff loses, and is not entitled to any recovery whatsoever. Thus, if an injured plaintiff proved $100.00 in damages, but the jury found the plaintiff was 51% at fault, then the plaintiff would make no recovery whatsoever. In Washington, the statute is different. Even if a plaintiff is found more than 50% at fault, the plaintiff will still recover his or her damages. So, if a plaintiff in a Washington court approves $100.00 in damages, but is found to be 80% at fault, then that plaintiff will recover $20.00.

The “seat belt” defense different than a typical comparative fault defense, because there is another statute in Oregon that limit the percentage of the reduction of damages, even if this defense is successful. Thus, if this case went to trial in Oregon, and Walmart was successful in asserting the seatbelt defense, Morgan’s damages would only be reduced by 5%. The Legislature made a decision that injure plaintiffs should be somewhat protected from this defense.

Another point worth making is that Walmart, in asserting this defense, has to prove not only that Morgan was failing to wear seat belt, but that his injuries were more severe as a result of not wearing a seatbelt. This is called “causation.” This type of defense can be challenging, especially in a serious collision.

We handle cases involving comparative fault defenses all the time in Oregon and Washington, and if you have questions about your case, call us at 503-325-8600.