Do you think you could be held liable if one of your 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?
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A University of North Carolina Highway Safety Research Center study found an estimated 284,000 distracted drivers are involved in serious vehicle accidents every year. One of the factors that contributed to accidents is cell phone use.
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 the use of cell phones in cars.
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 usage is a distraction while driving, like a lot of other things. So why are employers worried? Two reasons:
1. Cell phone records can be subpoenaed to prove the employee was on the phone.
2. Other distractions cannot be identified to a specific time, and many drivers don't want to say they were distracted and not driving safely.
In 2000, a lawyer struck and killed a teenage girl in Virginia. The attorney was returning from a work meeting and 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 (the girl's family) 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 was also 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 since the employer required drivers to be available to clients via cell phone and use their driving time productively. Therefore, the employer is responsible for bad acts committed by an employee while on the job. The suit against the employer was settled for an undisclosed amount.
Why You're Liable
In December, 2001, a Miami jury awarded $21 million to a woman who was hit and severely injured by a lumber industry salesman while he was on his cell phone. 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 the 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 that prohibit employees from using cell phones while driving for business purposes and while driving to and from work. The restriction should include the use of hands-free headsets, (cell phone distraction involves all types of driver distractions: visual, manual and cognitive) since 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:
- Cellular phones should not be used while operating a vehicle.
- Allow voicemail to handle your calls. Return calls and messages when you are not driving.
- If you need to place a call or send a text, 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 your driving schedule and when you will be available to talk.
- Keep your hands on the wheel and your eyes and mind 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 have also responded by passing laws at a rapid pace. As of March 2012:
- Thirty-six states ban all drivers from texting.
- Eleven states and the District of Columbia ban all drivers from talking on handheld phones.
- Thirty-one states and the District of Columbia ban Graduated Driver License holders or teen drivers from any cell phone use.
- Nineteen 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 (iihs.org/laws/cellphonelaws.aspx) has a current listing about all U.S. state laws.
Effective January 3, 2012, the Federal Motor Carrier Safety Administration prohibits anyone operating a commercial motor vehicle from using hand-held cell phones while driving. The National Safety Council in their February 21, 2012 newsletter indicated that this ruling will affect more than 4 million trucks and bus drivers.
Commercial motor vehicle drivers are restricted from holding a mobile telephone to conduct a voice communication, dialing a mobile telephone by pressing more than a single button, or reaching for a mobile phone in an unacceptable and unsafe manner.
Any violation of this restriction may result in a civil penalty imposed on drivers in an amount up to $2,750; a civil penalty may be imposed on employers who fail to require their drivers to comply in an amount up to $11,000.
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.
How to Give a Driver Toolbox Talk
Communication is one of the best ways to prevent accidents. And one of the best ways of communicating the importance of driver safety is through toolbox talks. All drivers — full time, part time and even occasional drivers — should participate in these training sessions. You don't have to be a professional speaker to give a good toolbox talk. But there are ways you can make your talks more effective. Here are some tips:
Know your topic and plan your agenda a few days before the meeting so you're well prepared. Be able to present the talk without reading it and lead a discussion afterward. Wherever possible, use actual equipment to illustrate your points. Coordinate handout literature or other material you intend to use at the meeting.
Limit the length of your presentation. Given your operation, you would be the best judge of how much time to set aside. Generally speaking, 5 to 10 minutes is adequate. Allow for questions during or after your presentation.
Use examples of the company fleet loss history or unique accidents. In some cases, you might want to demonstrate the message by using one of the company's vehicles.
Do a wrap-up. Reinforce the important points brought out during the meeting. Thank your team for their interest and enthusiasm.
Start the meeting out on a positive note. After welcoming your drivers, promote teamwork and how toolbox meetings not only provide valuable information but also give everyone the opportunity to get together and exchange ideas. Be sure to compliment a job well done. Morale plays a bigger part than people think in affecting productivity and job satisfaction.
Keep it informal. Even though you may be using this resource as well as others, use your own words in making the actual presentation. For effective and rewarding results, do what's comfortable for you.
Invite drivers to participate. The purpose of any toolbox talk is to get people to think about safety problems.
Make the talk a hands-on session. Have your people name driving hazards and what to do about them.
Encourage them to offer suggestions to improve safety performance. When asking questions, use open-ended questions instead of questions that require only a yes or no answer.
Choose timely topics. Gear your talks to driver safety problems you are encountering at the moment or that you anticipate in upcoming jobs. Need some ideas? Visit APSP.org/WorkerSafetyResources.
Review recent accidents: What happened? Why did it happen? What should have been done?
Review recent driver violations: What was the violation? What hazard did it create? What injury could have occurred?
Review upcoming work schedule: What hazards are you concerned about? What routes do you use? What procedures should be followed?
The Place and Time
Hold the meeting in your work area. It is recommended that you hold your meetings the first thing in the morning or immediately after shift change when the workday will least be interrupted and the work area relatively quiet.
Hold a toolbox meeting once a week to reinforce your company's philosophy that job safety is important.
We hope these toolbox talks help you in the daily operations of your business. Keep them handy. Like any tool, they can't help unless you use them.
For more topics and information about worker safety, visit APSP.org/WorkerSafetyResources.