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Tort/Negligence – Punitive Damages – Highway Collision – RV & Bus – Sleeping Driver – Inadvertence

Tort/Negligence – Punitive Damages – Highway Collision – RV & Bus – Sleeping Driver – Inadvertence

George v. Greyhound Lines, Inc. (Lawyers Weekly No. 11-07-0269, 19 pp.) (Linda Stephens, J.) Appealed from Wilson County Superior Court. (Milton F. Fitch Jr., J.) N.C. App. Click here for the full text of the opinion.

Holding: A bus driver’s inadvertently falling asleep at the wheel does not subject either the bus driver or his employer to punitive damages.

We affirm the trial court’s grant of partial summary judgment on the issue of punitive damages.


Plaintiff was injured when the RV she was riding in was rear-ended by a passenger bus.

The trial court granted partial summary judgment for the bus driver and his employer on the issue of punitive damages. Plaintiff appealed, and we dismissed the appeal as interlocutory.

A jury awarded plaintiff $60,000 for personal injuries and $11,000 for property damages.

Plaintiff appeals from the partial summary judgment order and the judgment entered on the jury verdict.


Defendants argue that plaintiff’s appeal should be dismissed because, pursuant to G.S. § 1D-30, plaintiff’s punitive damages claim could not be tried by a different jury from the jury that heard her compensatory damages claim.

Defendants’ argument misapprehends the law. Instead of dismissing plaintiff’s appeal in order to comply with § 1D-30, we are required to remand for a new trial on all issues, including liability for compensatory damages” if plaintiff’s appeal is successful.

Defendants’ motion to dismiss this appeal is denied.

Punitive Damages

Plaintiff’s claim for punitive damages is based on allegations that the bus driver knew or should have known that he was overtired, sleepy or otherwise not fit to operate the bus; that he continued to operate the bus and failed to remain awake and alert immediately prior to the collision; and that he fell asleep while operating the bus, causing the collision. Plaintiff also alleges that the bus company knew or should have known that its driver was overtired, sleepy or otherwise not fit to operate the bus.

Plaintiff alleges that defendants’ conduct violated 49 C.F.R. § 392.3, a Federal Motor Carrier Safety Administration Regulation: “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 to begin or continue to operate the commercial motor vehicle.”

While the violation of a safety regulation may establish negligence per se in a civil trial in certain circumstances, the violation of a safety statute or regulation does not establish willful conduct per se. Instead, there must be sufficient evidence of a deliberate purpose not to discharge a duty imposed by the safety regulation.

Several bus passengers said the driver was or must have been asleep at the time of the collision because he took no actions to try to avoid the collision.

The driver himself could not recall whether he had slept before his shift. During the 43 hours that the driver was off work before beginning his 1 a.m. run on June 30, 2003, he either placed or received 77 phone calls. When the bus driver reported for duty sometime after midnight on June 30, 2003, he reported to no one at the terminal and no one from the bus company observed him before he departed the station.

The bus company’s vice-president of safety testified that it is possible the bus driver could have reported to work the morning of June 30, 2003, without having had sufficient rest, but the VP did not know how much sleep the bus driver had gotten before beginning the run that ended in the collision.

An internal company memo authorized by the VP indicates that inverting the sleep/awake cycle during off days “invites trouble when returning to work, as our internal clock needs time to readjust.” The memo also indicates that during the early morning hours from 2 a.m. to 6 a.m., people are more at risk of falling asleep, particularly if they have not had enough rest before returning to work.

The bus driver’s testimony tends to show that he was accustomed to his sleeping patterns and was not fatigued as a result of them.

Moreover, while the pleadings, depositions, answers to interrogatories, and affidavits may be sufficient to show that he fell asleep while driving the bus, inadvertent driver error caused by falling asleep behind the wheel  by itself does not support an award of punitive damages.

There is no evidence that the bus driver acted with a “deliberate purpose” not to discharge any duty imposed by 49 CFR 392.3 or acted with a “reckless indifference” to the rights of others by talking on the telephone and failing to get sufficient rest before beginning his run on June 30, 2003. On the contrary, at most the evidence establishes that he was merely inadvertent by dropping off to sleep.

Accordingly, we conclude that plaintiff failed to produce a forecast of evidence sufficient to support a claim for punitive damages against the bus driver. Thus, the trial court did not err in granting summary judgment in favor of the bus driver on plaintiff’s punitive damages claim.

Punitive damages may not be awarded against a party solely on the basis of vicarious liability for the acts or omissions of another. G.S. § 1D-15(c). Moreover, punitive damages may only be awarded against a corporation if “the officers, directors, or managers of the corporation participated in or condoned the conduct constituting the aggravating factor giving rise to punitive damages.” Id.

Because we conclude that plaintiff offered an insufficient forecast of evidence that the bus driver engaged in willful or wanton conduct, we likewise conclude that there was an insufficient forecast of evidence that the bus company “participated in or condoned” the driver’s alleged willful or wanton conduct.


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