Employer Cell Phone Liability: Update

Vol. 8
No. 1
Summer
2005

INSIDE

Employer Cell Phone Liability Update

Workplace Violence and Domestic Violence

Obesity In The Workplace: Update

HR Outsourcing Trends

Looking At Employee Turnover

Employer Briefs

Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

Employer Cell Phone Liability: Update

Overview: More Phones, More Driving, And More Liability

Cell Phone (And Other Activities) Creating Driving Risks

Business Cell Phone Liability

Policy Issues

State Cell Phone Laws

Statistics About Cell Phone Liability and Usage

Overview: More Phones, More Driving, And More Liability

An earlier article of ours in the Braun Consulting News on Cell Phone Liability has been one of our most popular and highly trafficked articles on our website. We decided to do an update and explore what has changed or what may be new around this interesting topic.

More Phones. Cell phone use is at an all time high. Over 190 million people used cell phones in the U.S. as of June 2005. With a total population of just under 300 million people in the United States this means that nearly 2 out of 3 people in this country use a cell phone at some point. That is two-thirds of the entire population.

More Driving. The odds of someone talking on a cell phone while driving at any given time are extremely high. Motorists on the road create nearly 40% of all cell phone calls. More phones and more driving equals more talking on cell phones while driving. This means more danger and liability on the road than ever before because of this risk factor.

AAA attributes 330,000 highway injuries annually to cell phones, while the Harvard Center for Risk Analysis found cell phone using drivers are responsible for 2,600 deaths a year. While this may not be dramatic news to most, the magnitude of the numbers involved indicate that this problem has a potential for danger and liability that few people (or businesses) really understand.

It should also be pointed out that the data is not comparative to other things that go on in cars such as smoking, scolding the kids, eating, shaving, putting on makeup and talking to passengers, none of which involve cell-phones. The point is that while phone use may be no more (or no less) distracting than other "in car" activities it is cell phones that are getting all the attention.

More Liability. The increase in accidents, injuries and fatalities attributed (rightly or wrongly) to cell phone using drivers will inevitably lead to an increase in litigation and claims for businesses and individuals who use phones while driving.

In this article we will discuss the risks of cell phone use while driving and why the risk of accident or injury is much higher and more dangerous than most people realize. We will also discuss liability and policy issues. It should be noted that many of the risks also apply to anything a driver is doing that could be a distraction from operating the vehicle.

And finally, we will give some more updated statistics on cell phone usage and company liability examples, as well as specific information about state and local laws affecting cell phone usage while driving.

Cell Phone (And Other Activities) Creating Driving Risks

Here are some facts and risks associated with using a cell phone while driving:

Drivers distracted by other activities (talking on cell phones) are significantly slower in braking, taking as much as three times longer to brake for danger.
Drivers talking on the phone take longer to regain speeds after slowing down.
Headsets and speakerphones are no less dangerous than hand-held phones.
A study by University of Utah showed that motorists on the blood-alcohol edge of being legally drunk drive better than sober drivers using cell phones or otherwise distracted. A similar study linked lack of rest to driver abilities much like driver intoxication - so all drivers need to be rested and paying attention to the job of driving.
Cell phone use while driving can cause drivers to exhibit "tunnel vision", staring straight ahead while distracted by their conversations.
Phones ringing (just like other loud sudden noise - kids screaming) startle people, and most people feel compelled to answer them (or act upon the distraction of any type) regardless of the traffic situation they are in.
Drivers usually need to take their eyes off the road when dialing, eating, writing, reading etc - don't do it.
Cell phone use while driving falls under the "driver distraction" category of risk so think about phone use as a distracted driver.
Being absorbed in conversations on the phone or with passengers inhibits concentration on driving.
The cognitive resources required to carry on a phone conversation are the same as those required to drive as well as many other coordinative functions - but distracted driving has added risk by the nature of the task of driving.

Business Cell Phone Liability

Under the doctrine of vicarious responsibility, employers may be held legally accountable for the negligent acts of employees committed in the course of employment.

Employers may be held liable for an accident by someone if they supply the phone, or if they encourage the driver to use it, whether or not the call is related to business.

There are two main reasons that businesses should be concerned about employees and cell phone liability:

1. An employee could be injured or killed in an accident in part because of cell phone usage while driving. It is an unsafe activity and increases the risk of injury or death.

2. If the employee is engaged in company business while on the phone and involved in an accident then the employer may be liable, and face significant financial repercussions.

Since 1999 there have been numerous legal cases demonstrating employer liability for accidents involving employees using cell phones during crashes.

We discussed a number of them in our earlier article, including the Smith Barney case in Pennsylvania, the Dykes Industries case in Little Rock, the Cooley Godward case in Virginia, and the case from Hawaii involving a state employee who hit a tourist from New Jersey.

Here are two more recent cases that may be if interest:

In Miami-Dad County, Florida a jury awarded a 78-year-old woman and her husband $20.98 million for the injuries that she suffered in a car crash that left her on a ventilator for live. The plaintiff sued the driver and the driver's employer. The woman's attorneys successfully argued that the defendant driver was so distracted that he made no attempt to stop and slammed into the rear of the woman's car. After subpoenaing the employee driver's cell phone records they proved that he had been on the cell phone talking at the time. The case settled for $16.1 million five days after the verdict. (Bustos v. Leiva et al.)
In the Beers Skanska case in Georgia a construction company agreed to a $4.75 million dollar settlement because an employee reaching over to a mounted, hands-free cell phone began punching in star 99 to retrieve a message as he slammed into a stationary sedan. This caused a chain reaction crash that left a man badly injured. In court the company claimed that the defendant was commuting to his job and was "not on the clock" at the time of the accident. "The cell phone was a tool provided by the company" was the statement made by the suing lawyer.

Employers may be targeted on some occasions because plaintiffs will go after the deepest pockets they can find, and multiple defendants are often named in lawsuits.

Not all juries find employer's liable but, without a policy in place and clear warnings of the dangers and risks of using cell phones while driving, employers may face a more hostile and less sympathetic jury than otherwise.

Clearly, cell phone use while driving is a risk to employees and those they share the road with. Employers who ignore this fact will increase the liability risk they face as a result.

While studies need to be used with caution, plaintiff's bar uses some studies that show using a cell phone while driving is nearly the equivalent of driving legally drunk.

Policy Issues

We think each employer should have, or consider having, a cell phone policy.

Consider the following:
* Exxon Mobil adopted a policy banning employees from using cell phones while driving on company time. The rule applies to 88,000 employees.
* UPS does not provide drivers with phones and forbids them from talking on their own phones while steering.
* AAA and NHTSA recommend curbing all forms of mobile phoning.

Here are some factors that could be considered for a cell phone policy:

Prohibit cell phone use entirely.
Employers should clearly instruct employees who are using company vehicles and/or company cell phones that they are prohibited from using the phone at any time while driving. If they are using their own vehicles and/or cell phones they should be instructed that they are not to use the cell phone for company business while driving.

Post warnings on employer owned cell phone and in the employer owned vehicle.
If use is prohibited then the warning can state that fact, otherwise warnings could point out the danger of cell phone use while driving.

Pull off the road before making or receiving a phone call.
If cell phone use is not completely prohibited, then it can be required that employees pull off the road and stop driving before making or receiving a phone call.

Require the use of hands-free headsets or devices.
If using a cell phone is allowed during driving it should be required that a hands-free headset or device that insures "hands on wheel/eyes on road" is used.

Comply with all state and local laws governing cell phone use.
Employees should be required to know and follow any state or local laws concerning cell phone use while driving.

Prohibit use in adverse weather or difficult traffic situations.
A policy may require that in certain weather or traffic conditions cell phone use should not be conducted while driving.

Limit the time allowed for cell phone use.
Drivers could be restricted to keep cell phone use to brief, limited conversations.

Inform clients of your cell phone policy.
Clients can be informed that your company has a cell phone policy and it is enforced because your company puts employee safety first.

Personal calls can be prohibited.
Personal calls on personal phones can be prohibited while employees are driving on company time.

Employees are liable.
State clearly that employees who are charged with traffic violations involving the use of a cell phone while driving will be solely responsible for all liabilities that result from such actions.

Employees should sign the policy.
Employees should be required to sign in acknowledgement that they have read and understand the cell phone policy and the potential disciplinary consequences of violating it.

If an employer permits cell phone use then employees should be instructed and trained in proper usage of the cell phone while driving. They should be educated about the dangers of driving and talking on the cell phone.

Your cell phone policy should be reviewed periodically, and enforced as much as possible at all times.

If you would like help in developing a cell phone policy for your company you can contact us at Braun Consulting Group by clicking here.

State Cell Phone Laws

According to the National Conference of State Legislatures, 42 states considered 116 bills related to cell phones and driving safety in 2003.

A number of states have cell phone laws, and you need to know about them if you conduct business in those states.

CONNECTICUT - Bans the use of hand-held cell phones while driving.

NEW JERSEY - Bans the use of hand-held cell phones while driving.

COLORADO - Bans the use of cell phones by young drivers.

NEW YORK - Bans the use of hand-held cell phones while driving. Taxicab drivers can't use cell phones while driving in New York City.

DELAWARE - Bans the use of cell phones by young drivers.

MARYLAND - Bans the use of cell phones by young drivers.

TENNESSEE - Bans the use of cell phones by young drivers.

ILLINOIS - Requires that drivers who use a head set with a mobile phone while driving must use a head set that provides sound through one ear and allows surrounding sound to be heard with the other ear. Chicago bans the use of hand-held cell phones while driving.

DISTRICT OF COLUMBIA (DC) - Bans the use of hand-held cell phones while driving. Bans the use of cell phones by drivers under 18.

MASSACHUSETTS - Drivers can use cell phones as long as it does not interfere with driving and one hand remains on the steering wheel at all times. Drivers must use hands-free devices in Brookline.

NEW MEXICO - Drivers must use hands-free devices in Santa Fe. Police officers are prohibited from using hand-held cell phones while driving in cruisers.

OHIO - Drivers must use hands-free devices in Brooklyn.

PENNSYLVANIA - Drivers must use hands-free devices in Conshohocken, Lebanon, Hilltown Township, York and West Conshohocken.

CALIFORNIA - Rental cars with cellular phone equipment must include written operating instructions concerning its safe use.

MAINE - Persons with instructional permits or persons under 18 with restricted licenses may not operate a motor vehicle while using a mobile telephone.

FLORIDA - Requires that drivers who use a head set with a mobile phone while driving must use a head set that provides sound through one ear and allows surrounding sound to be heard with the other ear.

As an example of a State law, here is a link to New York State's law regarding cell phone usage while driving.

As many as 40 countries may restrict or prohibit the use of cell phones while driving.

Statistics About Cell Phone Liability and Usage

In the United States over 190 million people used cell phones as of June 2005, compared with approximately 4.3 million in 1990, according to the Cellular Telecommunications & Internet Association.

University of Utah researchers determined that motorists on the blood-alcohol threshold of being legally drunk drove better than sober cell phone using drivers.

AAA attributes 330,000 highway injuries annually to cell phones being used while driving.

Motorists who use cell phones while driving are four times as likely to get into serious crashes where injury is done to themselves, according to a study by the Insurance Institute for Highway Safety in Perth Australia.

American motorists log about a billion minutes daily in calls, about 40 percent of all cell phone business.

Inattentive driving accounted for 6.4 percent of crash fatalities in 2003 according to the U.S. Department of Transportation.

Researchers for the Virginia Tech Transportation Institute and the National Highway Traffic Safety Administration (NHTSA) tracked 100 cars and their drivers for a year and concluded that talking on cell phones caused more crashes, near-crashes and other incidents than other distractions.

The New England Journal of Medicine found that the risk of accidents is four times higher when a motorist is using a cell phone.

A study from the University of Utah found that motorists who talked on hands-free cell phones were 18 percent slower in braking and took 17 percent longer to regain the speed they lost when they braked. An earlier study by the same researchers found that drivers talking on hands-free cell phones were less likely to recall seeing pedestrians, billboards or other roadside features.

A study published in the March 2003 issue of The Journal of Experimental Psychology: Applied, found that the distraction risk is as high for drivers who use hands-free cell phones, as for drivers who use hand-held devices.

The National Highway Safety Administration estimates that 25% of all motor vehicle accidents are distraction related.

According to the National Highway Traffic Safety Administration about one in three of all drivers use a cell phone for outgoing or incoming calls while driving. Other federal studies say the figure is much higher - finding that over 70% of all cell phone users talk on the cell phone while driving.

A study by the University of Indiana of "pre crash factors involved in traffic accidents" identified driver inattention as "the leading cause of automobile accidents."

Exxon Mobil adopted a policy banning employees from using cell phones while driving on company time. The rule applies to 88,000 employees and was adopted after Exxon Mobil used its own scientists to research the issue.

Virginia Commonwealth University Center for Public Safety, Crash Investigation Team, noted that the cognitive resources required to carry on a telephone conversation are the same as those required to drive.

The Harvard Center for Risk Analysis found that cell phone-talking drivers are responsible for about 6 percent of U.S. car accidents each year, resulting in 2,600 deaths and 330,000 injuries.

As many as 40 countries may restrict or prohibit the use of cell phones while driving.

If you would like help in developing a cell phone policy for your company you can contact us at Braun Consulting Group by clicking here.

This information should not be used as legal advice or as legal opinion on any matter. Obtain proper professional advice prior to using any information, including the above that could affect your legal liability.

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