WEST VIRGINIA RECORD

By ALLAN N. KARLIN

MORGANTOWN -- A recent editorial in The West Virginia Record suggests that there is something wrong with bringing suit against Jimmy John’s because a Jimmy John’s driver hit and killed Robert McClain, an elderly man who was walking his dog across South High Street in Morgantown.

The Record suggests that the case was brought against local and national Jimmy John’s companies “'cause that’s where the dough is.”

The Record, however, is wrong.

The case is against Jimmy John’s because, under our legal system, corporations have a responsibility for injuries and deaths caused by their employees and for the foreseeable consequences of their corporate policies.

The Jimmy John’s lawsuit raises important issues about a corporation’s responsibility for the harm caused by corporate policies. Yet, The Record’s editorial attack on that lawsuit ignores the real issue offering, instead, one of its cliched and predictable attacks on lawyers and their clients.

First, companies have historically been liable for the negligence of their employees. When an airplane crashes due to pilot error, one does not expect to limit one’s claim to the pilot.

Similarly, when a Jimmy John’s driver kills someone, the suit is not just against the driver. Is The Record suggesting we abandon generations of Anglo-American law and limit the responsibility for injuries or death to the driver while allowing the employer to disclaim liability?

Second, it is reasonable to conclude that Jimmy John’s, both the local franchise and the national company, share responsibility for this tragic death. Jimmy John’s franchises, following the policies of the national company, guarantee “Freak Fast Delivery.”

Its young drivers are timed on their deliveries and, according to a driver whose comment
appears in the The Record, required to complete those deliveries in 15 minutes. They are given signs for the top of their cars that remind them that their deliveries must be “Freaky Fast.”

Jimmy John’s advertises and expects customers to rely on speedy deliveries. It reinforces the Freaky Fast theme by publicly sponsoring racing drivers. It does not require a genius IQ to realize that a work environment, designed to make sure that deliveries are Freaky Fast will, sooner or later, have tragic results.

In the case, there is good reason to believe that Jimmy John’s policy led to Mr. McClain's death. One witness saw the Jimmy John’s car “accelerate speed and striking (sic) a pedestrian ...”

Another reported that the car “went by very fast.” The Jimmy John’s driver told the police that he had been looking at the clock on his dash, looked up, saw Mr. McClain, but “had no time to stop” adding, “I hit him at speed.”

The Jimmy John’s car left no skid marks. It hit Mr. McClain throwing him up and outward some distance down the street. The distance between the victim’s shoe, lying near the probable point of impact, and the place on the street where he was found was approximately 80 feet.

This case and the issues it raises are in the best tradition of our legal system. The Jimmy John’s policy and the facts surrounding Mr. McClain’s death raise serious questions about the role that corporate policies play in creating an environment where such tragedies occur.

Currently, there are at least three other lawsuits involving Jimmy John’s drivers in other states.

And some years ago, Domino’s Pizza abandoned its assurances of fast delivery after a jury verdict in a case involving a woman who was seriously injured by a Domino’s driver.

The should serve to remind us that corporate policies can have serious consequences in the real world whether those policies encourage drivers to drive faster in order to speed up deliveries, encourage coal mine managers to cut corners on safety to increase production or allow manufacturers to keep a dangerous product on the market even though it knows consumers are being harmed.

A jury of West Virginians will ultimately decide the merits of the case. In the interim, the issues raised by the case deserve serious discussion.

Sadly, The Record would rather take shots at the lawyers and injured persons who raise those issues than address them in a serious and thoughtful manner.

Karlin is a Morgantown attorney who represents Mr. McClain's estate in the Jimmy John's case.