“Move or Get Hit” Reported on Wal-Mart Truck Driver’s Twitter Profile After Fatal Crash

The Atlanta Journal-Constitution has reported that the Twitter profile of Kevin Roper, the Wal-Mart truck driver who had been awake 24 straight hours before a fatal crash in New Jersey, had included the phrase, “move or get hit.”

This illustrates what my friend Andy Young in Ohio pointed out to me last year about the practical values of Twitter in trucking accident litigation.

A Wal-Mart public relations spokesperson was quoted saying, “It is our belief that Mr. Roper was operating within the federal hours of service regulations.” I don’t know what the evidence will show regarding driver logs or electronic monitoring, both of which can manipulated.

But the Federal Motor Carrier Safety Regulations go beyond 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.”

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….”

49 CFR 390.13 mandates that companies not “aid, abet or encourage drivers’ violations of regulations.”

There are many ways that a company can make a show of conforming to safety rules while quietly turning a blind eye to safety. The reality of the 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 undoubtedly put that to the test.

Walmart U.S. President and CEO Bill Simon released a statement about the crash, promising the company will take “full responsibility” if investigators determine the truck caused the crash. “We can’t change what happened, but we will do what’s right for the family of the victim and the survivors in the days and weeks ahead.”

That’s good PR, but my observation of Wal-Mart’s conduct in other litigation, including but not limited to cases I have handled, leads me to suspect that Wal-Mart will “do what’s right” only when all other avenues are exhausted, when the families have been dragged through years of scorched earth litigation, when Wal-Mart’s defense lawyers have deposed every survivor for seven nasty and insulting hours each, and when a court forces them to “do what’s right.”   It is naïve to think that any case with Wal-Mart will ever be fairly resolved without vigorous, protracted advocacy.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.