Don't Let Distracted Drivers Put Your Company at Risk
On-the-job vehicle crashes can be costly to employers, even when they occur off the clock. Protect the company, drivers, and others on the road by developing and enforcing a comprehensive fleet cell phone policy.
AT A GLANCE
Companies must ensure drivers are not putting themselves, the company, and others on the road at risk. A total employer cell phone ban covers:
Handheld and handsfree devices.
All company vehicles.
All company cell-phone devices.
All work-related communications, even in a personal vehicle or on a personal cell phone.
The morning of Jan. 25, 2010, was a clear, sunny Texas day. Mindy Ragsdale, a 31-year-old, stay-at-home mom of two, and her 82-year-old grandmother, Peggye Woodson, were on their way to Mindy’s mother’s home.
Their sedan was stopped, waiting to make a left turn onto a heavily traveled two-lane rural highway. For 14 seconds prior to the crash, their vehicle should have been in full view of the driver of a cable TV utility pickup truck as it crested a hill and headed toward them with the cruise control set at approximately 70 mph.
Despite the truck driver’s one-quarter-mile field of vision, the truck slammed into the rear of Ragsdale and Woodson’s vehicle at full speed with the cruise control still engaged. The two were killed on impact.
The crash’s aftermath and its ripple effect were felt by many people.
Ragsdale and her husband, Jeremy, had known each other since high school. Ragsdale’s young children, ages 3 and 9, were left without a mother.
In addition to her children, Ragsdale cared for both sets of grandparents. Woodson’s husband of 62 years lost the attention and care of his lifelong partner and had no choice but to leave their family home and live out his remaining days in a nursing home.
All day, every day, millions of vehicles on the nation’s roads stop at red lights or make left-hand turns and aren’t struck. Ragsdale and Woodson should have been safe as they waited for traffic to clear. They should have arrived home safely as they had countless times before. So why did this tragedy occur? In the immediate aftermath of the accident, the truck’s driver told an emergency medical technician that he had been texting prior to the crash. The driver was employed by a cable company, and the truck was owned by that corporation. For the driver and the cable company, this was only the beginning of the story.
In 2010, the year of Ragsdale and Woodson’s crash, motor vehicle crashes killed nearly 33,000 people in the United States.
Motor vehicle crashes are the No. 1 cause of work-related deaths and account for 24 percent of all fatal occupational injuries. On-the-job crashes are costly to employers, incurring costs of more than $24,500 per property damage crash and $150,000 per injury crash.
Driver distraction is a significant factor in crashes, and cell phones have played an increasing role as use has grown rapidly in the past 15 years, from a small percentage of the population using cell phones less than a generation ago to virtually every person from young to old alike. Today, there are more U.S. cell phone subscriptions than there are people living in the United States, according to the National Safety Council (NSC).
The NSC estimates that at least 24 percent of crashes in 2010 involved drivers using cell phones, including 1.1 million crashes where drivers were talking on cell phones, and a minimum of 160,000 crashes during which drivers were texting.
Cell phone distraction involves all types of driver distractions: visual, manual, and cognitive. More than 30 research studies have found that hands-free devices offer no safety benefit, because they do not eliminate the cognitive distraction of conversation.
What does this mean for employers? Employees who use their cell phones while driving expose themselves to a significant safety risk that they are seemingly willing to accept. This risk applies to all employees, not just commercial drivers or other employees whose work involves driving, such as field salespeople or service technicians. A recent National Highway Traffic Safety Administration (NHTSA) survey found that drivers cite work-related communications as a reason to use phones while driving.
Employers who expect employees to use cell phones while driving as part of their business must recognize that doing so exposes their employees to a preventable crash risk and the employers to costly liability. Consider a situation in which an employer knew a behavior in some area of its operations exposed employees to a four-times greater risk of injury.
Would employers still expect, or even encourage, that behavior? That is precisely what happens when an employer permits or encourages employee cell phone use while driving.
With the intense publicity surrounding cell phone distracted driving in recent years, it would be difficult for employers and employees to argue that they’re not aware of the dangers. Beyond safety issues, employers are now being held to legal responsibility.
Going Above the Law
Employers are responsible for ensuring employees adhere to applicable federal agency regulations and federal, state, and municipal laws. However, what is often not understood is that these regulations and laws are a minimum requirement and may not be enough to keep people safe.
(For a list of federal agency rules, state laws, and municipal ordinances with which drivers and their employers must comply regarding cell phones and operation of vehicles, go to www.distraction.gov.)
In addition to the list of regulations and laws requiring compliance, in December 2011, the National Transportation Safety Board (NTSB) recently issued the following recommendation: All 50 states and the District of Columbia enact complete bans of all portable electronic devices for all drivers — including banning the use of hands-free devices. This recommendation follows its total ban recommendation for commercial drivers in October 2011. Recommendations are based on NTSB investigations of serious and fatal crashes that found driver or operator cell phone use was a factor in the crashes.
Here are several examples:
Nov. 14, 2004: A private tour bus struck a bridge on the George Washington Memorial Parkway in Alexandria, Va. The crash destroyed the motor coach’s roof and injured 11 students, one seriously. The bus driver was talking on a hands-free cell phone at the time of the crash. The driver had passed warning signs indicating that the right lane was nearly two feet too low for the height of the bus to pass under the bridge.
The driver, who had traveled this same route only about a week earlier, said he did not see the warning signs or the bridge itself before impact. The NTSB concluded that the bus driver’s cognitive distraction, resulting from a hands-free cell phone conversation, was the probable cause of the crash.
March 26, 2010: A semitrailer traveling southbound on I-65 near Munfordville, Ky., crossed the grass median and entered the northbound lanes where it was struck by a 15-passenger van. The crash killed 11 people.
The NTSB determined the probable cause of the crash was the truck driver’s failure to maintain control of his vehicle because he was distracted by the use of his cell phone.
Aug. 5, 2010: Traffic slowed before a work zone on I-44 in Gray Summit, Mo., as vehicles merged from the left lane to the right lane. A truck-tractor with no trailer slowed behind the traffic when it was rear-ended by a pickup truck.
This set off a chain of fatal collisions. A school bus carrying 23 passengers struck the pickup truck and came to rest on top of the pickup and the truck-tractor. Moments later, a second school bus in the convoy that was carrying 31 passengers rear-ended the first school bus. Two people were killed and 38 people were injured. The NTSB determined that the probable cause of the first collision was distraction due to a text messaging conversation conducted by the pickup driver that resulted in his failing to notice and react to the truck-tractor in front of him.
Doing More than the Minimum
Employers should set policies that exceed existing rules, regulations, and laws.
Safety policies and systems in many companies are designed to reduce significant risks and protect employees. Companies whose leaders are committed to safety excellence know that their safety systems and policies often exceed OSHA requirements or state laws, because regulations and laws often prescribe minimum standards, not best-in-class safety. Designing safety policies that only comply with federal rules, regulations, or state laws often leave employees vulnerable to injury and companies exposed to liability and financial costs. Cell-phone use while driving is, in this way, no different than many other occupational safety issues.
Employers can be, and have been, held liable for actions that are actually allowed by federal regulation and individual state laws.
As a first step, employers must realize the full extent of their exposure to liability. The legal theory of respondeat superior or vicarious responsibility means that an employer may be held legally accountable for negligent employee actions if the employee was acting within the scope of his or her employment at the time of a crash. The key phrase “acting within the scope of his or her employment” can and has been defined broadly in cases of crashes involving cell phones.
To highlight a few:
● A jury found that a driver and the corporation that owned the vehicle were liable for $21.6 million because testimony revealed the driver may have been talking with her husband on a cell phone at the time of the fatal crash.
● An off-duty police officer was texting moments before a fatal crash, and, because he was driving a police cruiser, his employer was held liable for $4 million.
● An employee was involved in a fatal crash while making “cold calls” as he drove to a non-business-related event on a Saturday night. The firm did not own the phone or the vehicle, but the plaintiff claimed that the company was liable because it encouraged employees to use their “car phones” and lacked a policy governing safe cell phone use. His firm settled the lawsuit for $500,000.
The lines that we may think exist between employment-related and personal or private life get blurred in some of these cases that involved:
● Cell phones owned by employees as well as employer-provided equipment.
● Employee-owned vehicles, as well as employer-owned or leased vehicles.
● Situations where employees were driving during non-working hours or were engaged in personal phone calls.