MORGANTOWN – A national sandwich shop chain that promises “Freaky Fast Delivery” is being sued after one of its delivery drivers struck and killed a pedestrian.
Linda Lutman filed her suit Feb. 4 in Monongalia Circuit Court against Jimmy John’s Franchise LLC, CDL Properties LLC, Jimmy John’s Enterprises Inc. and Levi Sooy. She is the daughter of J. Robert McClain, who died Aug. 19 when he was struck and killed by a Jimmy John’s delivery car driven by Sooy.
McClain was 79 at the time of his death.
Lutman says Sooy, who is an assistant manager at Jimmy John’s in Morgantown, was driving a delivery car that day when he struck and killed McClain, who was walking his dog along South High Street. She claims Sooy was speeding and failed to look for pedestrians.
“I think when you create an environment where your drivers are encouraged to deliver ‘freaky fast,’ inevitably you’re going to have drivers who can cause this type of terrible injury,” said Morgantown attorney Allan M. Karlin, who filed the complaint on behalf of Lutman.
The police report says Sooy was looking at the clock on his dashboard when he hit McClain. One witness said they saw Sooy “speed” toward McClain, and another said Sooy was driving “very fast.”
“The policies developed, taught, encouraged, mandated, promoted and/or condoned by” Jimmy John’s and its franchises “include, but are not limited to, a policy known as ‘Freaky Fast Delivery,’” the complaint states. “This policy is part of a national advertising campaign …
“This increased risk of injury to the public was both foreseeable and preventable. … Defendants had actual knowledge that their policies could and, in fact, did endanger the safety of the public.”
Despite these known dangers, Lutman’s complaint says the company “continued to teach, encourage, mandate, promote and condone Jimmy John’s ‘Freaky Fast Delivery’ policy to employees.”
The complaint says Sooy was negligent in driving his car, striking and killing McClain. It also says CDL is vicariously responsible as the franchisee for Jimmy John’s.
It also says Jimmy John’s is responsible because of its campaign promising the “Freaky Fast Delivery.”
They “created a foreseeable and unreasonable risk that Jimmy John’s drivers would injure and/or kill members of the public,” the complaint states.
Karlin said McClain’s family was crushed by the loss.
“You have a close couple who were enjoying their retirement years, only to have Mr. McClain taken away by a Jimmy John’s driver,” he said. “It was devastating to Mrs. McClain, her daughter and her grandchildren. On top of everything else, Mrs. McClain had some medical problems, and she was getting ready for surgery. She was particularly dependent on him.”
Jimmy John’s has been sued before for accidents involving delivery drivers. In 2011, a man in Springfield, Ill., sued after he was hit driving his motorcycle by a Jimmy John’s delivery driver. That case originally was dismissed, but an appellate court last year said the case could proceed after all.
And both cases harken to a 1993 case against Domino’s Pizza when a St. Louis woman had a car accident with one of its delivery drivers. Her case was based on the fact that Domino’s had a 30-minute delivery guarantee that she said promoted dangerous driving as well. Domino’s settled that suit and stopped using the 30-minute guarantee.
Lutman seeks compensatory damages including sorry, mental anguish and solace, loss of society, companionship, comfort, guidance, kindly offices and advice of her father as well as compensation for reasonably expected loss of income and household services and services, protection, care and assistance provided by McClain. She also seeks funeral expenses and other relief, including court costs and attorneys fees.
In addition, she seeks punitive damages because she says the conduct of the defendants was willful, wanton and/or undertaken in a willful disregard for safety of McClain and the public.
Karlin as well as Jane E. Peak, Sarah W. Montoro and Harrison P. Case of Allan N. Karlin Associates in Morgantown as well as Morgantown attorney Raymond H. Yackel are representing Lutman.
Monongalia Circuit Court case number 14-C-92