Whether or not cell phones cause accidents, lawsuits concergning them are on the rise.
By William Atkinson
A couple of years ago in Florida, a salesman for a lumber wholesaler was talking on his cell phone while driving to a sales appointment and crashed into a car driven by an elderly woman. His employer was sued for $21 million, and they later settled for $16.2 million.
This is one example of a growing trend of blaming cell phone use for causing auto accidents, and a case that should grab the attention of any company with employees using communications devices out on the road.
A number of groups are calling for legislative action. In 2004, the National Highway Traffic Safety Administration began recommending that people not use cell phones at all while driving. As early as 2001, the Canadian Medical Association Journal called for laws restricting cell phone use while driving because of the risks involved. However, the Canada Safety Council says there are few hard facts that connect cell phone use with auto accidents and points to bad drivers instead, although it urges drivers to avoid unnecessary calls while driving.
But whether cell phones or the drivers themselves are to blame, when an accident involves the use of a cell phone, the number of lawsuits is increasing. With this in mind, companies that have drivers with cell phones out on the road would do well to create a cell phone policy.
A study reported in the New England Journal of Medicine in 1997, which was one of the earliest but still one of the most comprehensive studies on cell phone usage while driving, found that the risk of vehicle accidents is four times greater when motorists are using cell phones. A 2002 study by the Harvard Center for Risk Analysis estimated that the use of cell phones by drivers results in approximately 2,600 deaths, 330,000 injuries and 1.5 million instances of property damage in the United States each year.
Part of the problem involves reduced physical control (trying to steer with one hand). The more significant problem, though, is mental inattentiveness. That is, many employers have attempted to reduce the risk of vehicle accidents while their employees are using cell phones by arranging for them to use hands-free devices. However, these devices are even more of a problem, because they encourage people to talk longer and more frequently on cell phones while driving.
A 2003 University of Utah study found that drivers using hands-free cell phones are less attentive than drunk drivers. In the study, subjects used a driving simulator. Those talking on cell phones had slower reaction times and more accidents than the other subjects who had consumed vodka and orange juice until their blood alcohol levels reached .08 percent, the legal limit for driving in most states.
Why is a cell phone conversation more distracting than a conversation with a passenger in your vehicle? Your passenger can actually be a driving aid, helping you keep your eyes on the road and pointing out potential hazards ahead. In addition, if driving does become hazardous, your passenger tends to stop talking and begins to help you navigate. The person on the other end of a cell phone, though, has no idea what’s going on while you’re trying to drive and will thus continue to talk, regardless of how dangerous your driving situation has become. Since the other person wants to keep talking, you, as the driver, also feel obligated to continue talking, which distracts you from your primary responsibility: focusing all of your attention on driving.
Because of the increasing frequency of accidents involving cell phone usage, a number of states have adopted statutes related to cell phone usage by drivers. “Some states, for example, have passed laws that prohibit municipal employees from driving while talking on cell phones,” notes Adam J. Cohen, an associate with the law firm Pullman & Comley LLC in Bridgeport, Conn.
In fact, over the last three years, every state in the nation has at least considered some sort of legislation related to cell phone use while driving. Currently, 17 states have laws or restrictions on the books, the toughest being New York, New Jersey and Washington, D.C., which prohibit the use of hand-held phones while driving but allow hands-free devices.
As noted above, though, these laws can cause more problems than they solve, and other agencies are attempting to provide more education to states in this regard. For example, the Governors Highway Safety Association, Washington, D.C., currently discourages states from adopting legislation that bans only hand-held cell phones while driving. “Our position is that drivers should not use cell phones, either hand-held or hands-free, while driving,” states Jonathan Adkins, a spokesman for the GHSA. “Driving and talking on cell phones at the same time creates dangerous situations, and lives are lost in crashes where cell phone use has been a contributing factor.”
So where does this leave employers? In simple terms, employers should have cell phone policies in place. In fact, this trend is already occurring among forward-thinking employers, according to Cohen. “State laws are not developing nearly as quickly as employer policies,” he notes. “In addition, employer policies tend to be much stricter than state laws.”
The GHSA is one organization that is encouraging employers to create policies on cell phone usage. “We encourage employers to have policies in place that ban employees from using electronic communications equipment such as PDAs, laptop computers and cell phones on the job,” explains Adkins.
There are two reasons employers should adopt policies, according to Cohen. He admits that other distractions, such as eating food, can cause accidents. So why focus policies on cell phones in specific? Both of his reasons relate to legal liability exposure – where employers are sued for accidents caused by their driving employees.
“First, it is difficult to prove that someone was eating a hamburger when an accident occurred,” he explains. However, because cell phone providers keep track of usage, it is easy to prove whether an employee was talking on a cell phone at the moment an accident occurred. In fact, plaintiff attorneys now routinely subpoena cell phone records to determine whether drivers were talking on their phones at the time vehicle accidents occur. In many cases, the records verify that drivers were on their phones immediately prior to calling 911 to report the accidents that their inattentiveness caused!
Second, cell phone use is novel. “People have been eating in their cars for decades,” continues Cohen. “However, cell phone-related accidents are a hot topic these days. As such, they tend to attract a lot of plaintiff’s attorneys.”
Cell phone policy
If you do create a policy on cell phone usage by employees while driving on company business, Cohen has a number of recommendations.
First, the policy should ban all cell phone conversations while driving as a part of work duties. That is, it should include bans on personal cell phones and personal phone calls. “For example, if an employee is using his own cell phone and talking to his parents while driving for you, you can be held liable,” he states.
Again, since the real problem is distraction – not necessarily driving one-handed – the policy should state that employees cannot communicate on any cell phones (hand-held or hands-free) while driving.
Can employees talk on cell phones at all when in vehicles? Cohen recommends that the policy state that drivers should pull over to the side of the road or a parking lot to make any cell phone calls that need to be made.
What about incoming calls? That is, what if you need to call an employee while he’s on his way to one location to redirect him to another location? Cohen recommends that, if employees do have cell phones, they should be outfitted with caller ID and/or voice mail. In this way, the employee, upon hearing the call, can pull over to the side of the road, stop the vehicle, activate caller ID or voice mail, and return the call if necessary while stopped.
The cell phone policy should be part of the employee manual. In fact, for employees who regularly drive as a part of their duties, Cohen recommends that they read and sign the policy.
Once you create the policy, you need to enforce it. If you don’t enforce it, and if an employee is involved in an accident while using a cell phone, your exposure may increase. The reason is that the plaintiff’s attorney will emphasize the point that you knew about the risk (as evidenced by the fact that you created a policy) but failed to take appropriate steps to protect against the risk. “The courts don’t take kindly to things like that,” he adds.
Research shows that driving is already the most dangerous part of an employee’s job. More employee deaths and injuries occur while driving than any other activity. Adding cell phone distraction to the situation only compounds the problem.
And one more thing to consider: In terms of cell phone-related accident lawsuits, the verdicts that are coming down are often in the millions of dollars.