Imagine one cell phone call costing $20.9 million. One company didn't have to imagine it. The astronomical bill did not stem from going over their minutes or roaming charges, but from a personal injury lawsuit they lost after an employee involved in an accident was found to have been using a cell phone at the time.
Cell phones, personal digital assistants, pagers, wireless laptops and portable music devices have turned vehicles into rolling offices and entertainment centers. But driving while operating such devices creates distractions that draw attention away from the primary function of the driver: operating a vehicle safely.
Litigation stemming from electronic distraction is a growing concern for companies and their insurers. Recently, a Boston trolley operator rear-ended another trolley as he was text-messaging his girlfriend. This prompted his employer, the Massachusetts Bay Transportation Authority, to instruct workers to leave their cell phones at home. Another highly-publicized incident occurred last September when a Union Pacific Freight train engineer in California was found to have sent his last text message about a minute before killing 25 people, including himself, in a horrific collision.
Even if employees are not officially on company business, and in some cases not even making a business call, employers can still be held liable if an accident involves a cell phone or other device provided or permitted by the employer. Employers may be found to be vicariously responsible and held legally accountable for the negligent acts of employees committed in the course of employment. There is also the chance that they may be found negligent if they fail to put in place a policy for the safe use of cell phones. Punitive damages may be assessed against the employer by a court ruling. In many states punitive damages are not insurable.
To manage these risks, many companies have established cell phone usage policies. For instance, some companies allow employees to conduct business over the phone as long as they pull over to the side of the road or into a parking lot. Others have gone even further and have banned the use of all wireless devices.
Common sense behavior, beyond what may be legally required by local or state statute, is required to maintain safe driving practices. Some guidelines to help drivers mitigate potential risks:
Restrict use of electronic devices to non-driving times. Park safely before talking on the phone or using other equipment. Make sure to schedule calls when you know you will not be driving.
If a phone or other device is occasionally needed while driving for a specific business purpose, keep it within easy reach. If the device is dropped, never take your eyes off the road or lean over in the seat to recover it while the vehicle is moving.
Do not talk on the phone or use electronic devices during hazardous driving conditions such as heavy traffic, hazardous weather or times of reduced visibility (including night driving). Voice mail is designed to answer the phone when an employee cannot. Let it do its job.
Drivers should inform callers that they are driving and that they may need to hang up abruptly. Conversations should be kept brief and limited to the specific business topic requiring attention. Hang up immediately if talking becomes a distraction or safety is jeopardized.
Employers training their dispatchers and managers should emphasize that a driver's first duty is to operate the vehicle without distractions. Responding to the dispatcher or manager is a secondary responsibility to be performed once the vehicle has been stopped and parked safely.
Emotional, stressful or complicated business conversations are particularly distracting and lead to unsafe driving. Tell the caller that you will call him back within a certain timeframe so as to offer your undivided attention. Then find a safe place to park.
Do not read or enter numbers and coordinates into electronic devices while driving.
It goes without saying that video games and DVD players are for the use of passengers only. Such devices should be located to the rear of the driver and kept at a volume that is not distracting.
The safety of the driver, the passengers in the vehicle and the other drivers on the road must take precedence.
XL Specialty Insurance Company