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Traumatic Brain Injury; It Can Happen to Anyone

Posted on: June 2, 2015

In June of 2014 comedian Tracy Morgan was riding on the New Jersey Turnpike in a limousine. Accompanied by friends, he was returning from a performance in Delaware. As his driver continued along the Turnpike near Cranbury, a truck driver operating an eighteen-wheeler approached their car. The semi-truck was driving about 20 mph over the posted speed limit and the driver had been awake for a consecutive 24 hours. The truck slammed into the back of the limo. Jimmy MacNair, a friend and fellow comedian died as a result of the crash. Morgan suffered broken bones and a brain injury as a result of the impact. Morgan was in a coma for several days after the accident. He woke to learn of his condition and the death of his friend. During his first public appearance since the accident, this month, Morgan told Today’s Show Matt Lauer, “I have my good days and my bad days when I forget things. I am working on my memory and my walking.”

As many who have been following this story know, Morgan has filed a personal injury lawsuit against Wal-Mart alleging that the truck driver, Kevin Roper, was negligent because he had been awake for more than 24 hours at the time of the crash and was suffering from fatigue. Roper was traveling about 20 miles per hour over the speed limit at the time of the accident. Morgan’s accident brought fresh attention to the hazard of fatigued driving, or driving while tired. In many states, including Maryland, Virginia and Washington D.C. for example, a person who is injured by a fatigued driver may be able to file a personal injury lawsuit to recover damages for their injuries, lost pay, medical bills, and pain and suffering. This is true regardless of whether they were wearing a seatbelt or not. Indeed, evidence of whether or not the victim was wearing a seatbelt, in many instances may be inadmissible at a trial on the matter.

Dangers of Fatigued Driving

The dangers associated with driver fatigue are well documented. The National Highway Traffic Safety Administration conservatively estimates that 100,000 crashes are caused by fatigue every year, resulting in 1,550 deaths, 71,000 injuries, and $12.5 billion in monetary losses.

Fatigued driving is more likely to occur when the driver is:

  • An adult between 18 and 29;
  • A male;
  • An adult who has children;
  • A shift worker; or
  • Someone who suffers from a sleep disorder, such as sleep apnea or insomnia.

According to the Centers for Disease Control and Prevention, being awake for 18 hours impaired drivers to the same extent as if they had a blood alcohol concentration (BAC) of 0.05%. Being awake for 24 hours was the same as having a BAC of 0.10%.

How Can Fatigued Driving Serve as the Basis of a Personal Injury Lawsuit?

Many car accident lawsuits are grounded in the law of negligence. This law requires drivers to act with a reasonable manner of care. A driver who fails to drive with reasonable care and causes an accident can be liable for the injuries and/or property damage they cause. For example, in his lawsuit against Wal-Mart, Tracy Morgan alleged that the driver, Kevin Roper, had not taken reasonable care because he was awake for 24 hours at the time of the crash. Many trucking accidents are caused by driver fatigue, for example, because truck drivers are often on the road all night long to make short delivery windows.

Another legal theory related to negligence is negligence per se. Under negligence per se, an act can serve as the basis of a personal injury lawsuit if 1) that act was in violation of a statute or regulation, and 2) caused the type of harm that the statute or regulation was designed to prevent.

There are several federal laws in play that relate to fatigued driving. A new law, passed in 2013, places three limitations on drivers operating commercial vehicles (with a commercial drivers license.)

These Rules state that

  • Drivers must take a mandatory half hour break within their first 8 hours on the road;
  • Drivers must drive less than a maximum of 70 hours per week; and
  • Drivers must have a 34-hour off-duty “restart” period once per week.

It is likely that many commercial drivers are not obeying these laws. There is because without electronic regulation systems in place, there is no way to truly know if a driver is taking the required break. Just because they record it in a log, doesn’t necessarily mean it is occurring. Perhaps as we equip more and more vehicles with GPS tracking software and other kinds of mobile tracking data, we will figure out a way to force drivers to take the required breaks to cut-down on driver fatigue. Perhaps self-driving trucks will solve these problems?

Traumatic Brain Injury

Morgan’s brain injury puts him among the 2.5 million people in the United States who suffer from the same condition. A traumatic brain injury ranges in severity depending upon the circumstances surrounding the injury. For example someone can suffer a “mild” TBI and have short-term changes in their mental status. In contrast, another victim could suffer a “severe” TBI and lose consciousness for an extended length of time and even suffer amnesia long after the accident. One of the primary determining factors in a TBI situation is the severity of the trauma to the head. As a TBI is caused by a blow to or jolt of the head, the intensity of the impact is an indication of the severity of the injury. The majority of TBIs are caused by a fall. Aside from impact another indicator of severity is the age of the victim. As people age their bodies cannot handle impact as easily and the damage to the brain can be more severe. More than two-thirds of TBIs in adults occur in patients over the age of 65. But, as the Center for Disease Control correctly points out, TBIs can happen to anyone because everyone is at risk.

Life After a Traumatic Brain Injury

Just as every patient is unique, the prognosis for a TBI will also differ dramatically from person to person. Dr. Douglas Smith, professor of neurosurgery and director of the Center for Brain Injury and Repair at the University of Pennsylvania, told reporters, “We’re really missing information on how to provide a prognosis for these patients. Some become vibrant members of society again and if you met them you would never know they had had a brain injury. Other face a lifetime of disability.” Smith went on to explain that the common issues associated with a TBI are memory function and “processing speed.” In addition, people often struggle with maintaining appropriate conversations. While recovery can continue throughout the patient’s lifetime, doctors warn patients that getting treatment right away is essential for the fullest recovery. As for Morgan, his tearful interview included his concerns that he might never get to be funny again.

Justin Katz is a personal injury lawyer who represents injury victims in Maryland, Virginia and Washington DC
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