The University of North Carolina Highway Safety Research Center study found an estimated 284,000 distracted drivers are involved in serious vehicle accidents every year, with cell phone use being one of the major contributing factors.
More than 80 percent of the nation’s 94 million cell phone owners use them while driving, at least sometimes. Many states have legislation to regulate cell phone use in moving vehicles. At least 13 nations, including England, Germany and Japan, have banned their use in cars.
Cell phone usage is a distraction while driving, but so are a lot of other things. So why are employers worried? In the past few years, cell phone usage has been an issue in several lawsuits, and employers are being held responsible if a worker causes an accident while talking on the phone.
- Cell phone records can be subpoenaed to prove the employee was on the phone.
- Other distractions cannot be identified to a specific time, and many drivers don’t want to say they were distracted and not driving safely.
Liability Cases Against Employers
Can an employer be held liable if one of its employees causes an accident and injures another party, while driving a company vehicle or using his or her personal vehicle while engaged in business-related activities? Considering the following case law, the answer is yes.
For example, in 2000, a lawyer struck and killed a teenage girl in Virginia. The attorney, who was returning from a work meeting, was allegedly talking on her cell phone with a client at the time of the accident. The deceased’s family filed a $30 million lawsuit against the employer. In October 2004, the jury awarded $2 million in damages to the family of the young girl. The plaintiff’s lawyer filed suits against both the driver and the driver’s employer after it became clear through an examination of phone records that the driver had been talking to a client when she hit the girl.
The driver also was convicted of criminal charges and sent to prison for two months for punitive and compensatory damages. In his suit against the employer, the plaintiff’s lawyer argued the case on the grounds of common law negligence because the employer required drivers to be available to clients via cell phone and to use their driving time productively, and because an employer is responsible for bad acts committed by an employee while on the job. The case is one of several in recent years in which an employer has been held liable for an accident caused by a driver using a cell phone. The suit against the employer was settled for an undisclosed amount.
In December 2001, a Miami jury awarded $21 million to a woman who was hit and severely injured by a lumber industries salesman while he was on his cell phone. Also in 2001, an appeals court ordered the state of Hawaii to pay $1.5 million in damages after a state teacher, who had just completed a cell phone call, struck a pedestrian while driving to work.
Employer liability in these types of cases is based on a legal doctrine called respondeat superior. Under this doctrine, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred. In addition to arguing that an employer is liable for the harm caused by one of its employees, some plaintiffs have argued that the employer is directly liable for its own negligent conduct in failing to provide adequate training or instructions on safe cell phone use, or failing to restrict usage.
With the risk of employer liability associated with employee use of cell phones while driving, society’s growing dependence on cell phones, and the new laws restricting cell phone use while driving, it is time—now more than ever—for employers to consider adopting or adapting comprehensive policies and practices concerning employee cell phone use.
Considerations include adopting cell phone policies prohibiting employees from using cell phones while driving for business purposes and while driving to and from work. Cell phone distraction involves all types of driver distractions: visual, manual and cognitive. The restriction should include the use of hands-free headsets because studies indicate it’s the conversation (cognitive) not the physical act of holding the phone that contributes to accidents.
An insurance company’s sample policy states:
- Mobile phones should not be used while operating a vehicle.
- Rely on voicemail; return calls after driving.
- If a call must be made or a text must be sent, pull off the road to park in a legal and safe location.
- Ask a passenger to make or take the call.
- Inform regular callers of the driver’s schedule and when he or she will be available to talk.
- Keep both hands on the wheel and both eyes on the road while driving.
While there is no guaranteed defense to liability, developing appropriate policies, training and enforcement mechanisms can help limit potential liability and increase public safety.
State legislatures also have responded by passing laws at a rapid pace. As of March 2012:
- 36 states ban all drivers from texting;
- 11 states and the District of Columbia ban all drivers from talking on handheld phones;
- 31 states and the District of Columbia ban Graduated Driver License holders or teen drivers from any cell phone use; and
- 19 states and the District of Columbia have laws restricting cell phone use by bus, school bus or transit drivers.
The Insurance Institute for Highway Safety has a current listing about all U.S. state laws. The time is now for companies with a strong safety culture to help protect their employees and the communities in which they live and work by reducing risk and banning the use of cell phones.