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Multitasking by drivers raises liability concerns

Multitasking by drivers raises liability concerns

Renewed buzz about the safety of using personal electronic communications devices while driving could mean new headaches for employers, according to experts.

Transportation Secretary Ray LaHood recently called for a “summit” to address issues associated with people who send text messages while driving. That came shortly after the release of a report—prepared in 2003 but withheld until July—showing that driving while using hands-free cell phones and other communications devices is nearly as unsafe as driving while using hand-held devices.

In the meantime, legal experts warn that rapidly growing numbers of state laws and local ordinances governing use of electronic devices while driving expose employers to new liability. While no state entirely bans using cell phones, six states ban hand-held cell phone use and 17 states and the District of Columbia ban text messaging for all drivers, according to the Washington-based Governors Highway Safety Assn. (see box, page 7).

In addition, Sen. Charles Schumer, D-N.Y., introduced legislation in late July that would ban mass transit drivers nationwide from texting while on the job, citing recent deadly accidents in Massachusetts and California caused by distracted mass transit drivers.

A July Virginia Tech Transportation Institute study found text messaging is 23 times as dangerous, reaching for an electronic device is 6.7 times as dangerous, and dialing a cell phone is 5.9 times as dangerous as nondistracted driving.

But there is no consensus on whether the issue should be dealt with legislatively, just as there is no consensus among risk managers and safety managers over what a company policy should contain.

In a paper updated in 2006, the Des Plaines, Ill.-based American Assn. of Safety Engineers said that operating a vehicle “while using a cellular phone is a potentially unsafe act,” but also noted that drivers face other distractions. “ASSE's view is that specifying cellular phones in legislation and regulation may not be the best route to take in addressing this issue....Perhaps an alternative course of action is to examine the existing laws and rewrite them, where appropriate, to give government officials more guidance as to what constitutes a hazardous act created by inappropriate actions, which may include use of electronic devices such as cellular telephones,” the ASSE said.

Legal experts say the exposures employers face can be considerable.

“If there's an accident, a plaintiffs lawyer would use the violation of the local ordinance as prima facie evidence of negligence in order to prove that the employee and therefore the employer, through respondent superior liability, is liable for the accident,” said Gerald Maatman, a partner at Seyfarth Shaw L.L.P. in Chicago. “Employers, if they're solely focused on this area, they need to have a policy in place for employees using a company vehicle to abide by all applicable laws and rules of the road. If an accident should occur because the employee is using a communications device while driving, they'd be acting outside the scope of their employment.”

Given studies linking electronic device use to accidents, “it will be much more likely that plaintiffs lawyers will seek some sort of punitive component because of what is emerging as recognized by legitimate authoritative sources as contributing to the likelihood of injury and accident,” said Peter Susser, a shareholder in the Washington office of Littler Mendelson P.C. It is a “very good idea” for companies to have a formal policy on the use of such devices and make sure employees know the company takes the issue seriously, he said.

Some Aon clients have set internal policies governing on-the-road electronic communications, said David W.J. Mitchell, director of risk control and safety for Aon Risk Services' trucking practice in Little Rock, Ark. In some cases, trucking companies have imposed policies that ban texting and e-mailing or even long conversations while driving, he said. They also encourage safe habits and voluntary cooperation because policies can be “almost impossible to enforce,” he said. Employers are following up with continuing education in safety meetings as well.

But Frank D'Ambrosio, ASSE's administrator of the transportation practice and a senior vp at New York broker Frenkel & Co. Inc., said he hasn't seen a lot of company policies addressing the issue. Those that have policies have banned using electronic communications devices while driving, suggesting drivers pull over to check messages and make calls.

About a year ago, Atlanta-based DS Waters Inc., which delivers bottled water to offices and homes nationally, installed video cameras in some of its delivery vehicles, said Mike Belcher, director of safety.

The company found that about 50% of highway collisions involved some sort of cell phone use or distraction, he said.

“We have since put into place a pretty strict procedure. With any of our route trucks, cell phone use is prohibited,” Mr. Belcher said.

“People were falsely under the impression that it was OK to use a mobile phone if you were using a hands-free device,” he said. “But if you're looking down at the device, a hands-free device is not going to help you.”

He noted that there had been no accidents attributed to cell phone use since the policy was adopted.

Labor Finders International Inc. has suffered no accidents related to electronic device use, said Wayne Salen, director-risk management at the Palm Beach Gardens, Fla.-based company. He said delivery drivers who drive temporary workers back and forth to job sites are not supposed to use electronic devices while they are driving. The ban, however, is not mandatory except when franchisees require it, he said.

“We do have salespeople who are out on the road during the work day, but we haven't gotten any more restrictive than” the policy regarding delivery drivers, he said.

But “if someone violates state law while on work, that's grounds for discipline up to and including termination,” Mr. Salen said. “We keep track of those that present an exposure to (Labor Finders') auto fleet program.”

At Pennsylvania State University in University Park, officials have discussed implementing a policy. However, “every time we brought it up, the Pennsylvania Legislature has coincidentally introduced legislation to restrict the use of cell phones,” said Gary Langsdale, risk officer for the school.