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 employees.

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.

Scary Statistics

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.

Dangerous Distractions

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.

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Understanding the Consequences

Employers should understand what they may face in today’s courtroom climate. We might expect an employer to be held liable for a crash involving a commercial driver’s license (CDL) holder who was talking on a cell phone with dispatch about a work-related run at the time of an incident — especially if the employer had processes or a workplace culture that made drivers feel compelled to use cell phones while driving.

Attorney Todd Clement, based in Dallas, specializes in trucking and commercial vehicle cases involving catastrophic injuries and death, including cases where employees were involved in crashes while using cell phones. According to Clement, juries are generally motivated to award large verdicts not by sympathy or outrage; rather, large verdicts are returned when the jurors believe that such decisions make themselves and their children safer. Crashes involving cell phone use appeal to a juror’s sense of self-preservation.

Public opinion polls show the majority of people believe it is very dangerous for other drivers to use cell phones while driving (even though many of these same people report using cell phones themselves while driving).

Many people — including those on juries — do not want other drivers to use cell phones or text. Because much of the public is now well aware of the risks, drivers engaging in distracting behavior are perceived as grossly negligent, not just ignorant. Juries, likewise, expect employers to be aware of the risk so that their failure to prevent this dangerous behavior can be seen as grossly negligent. It follows that employers should now be aware of the risks; and, thus, for them to allow employees to engage in the distracting behavior of texting or talking on a cell phone while driving is also seen as negligent and willful, not just ignorant.

So, what happens when an employee driver acts with negligence and the result is serious injury or death?

What happens when a driver runs a red light or a stop sign, or crosses the wide median of a freeway, or rear-ends a vehicle at high speed without ever hitting the brakes? Skilled victim’s attorneys will investigate the underlying cause of these negligent acts, particularly cell phone use, since these are the circumstances of numerous crashes involving texting or talking on cell phones. The victim’s attorneys will then seek large jury verdicts, including punitive damages (where permitted), as a way to send the message to society that people shouldn’t take actions that are perceived as threatening to life and limb.

A victim’s attorney’s job is to demonstrate the factors that led to negligence. In cases involving an employee, a smart lawyer will follow the trail of evidence. This trail will lead not only to the employee, but to the employer as well. This is the legal discovery process. Discovery can uncover:

● Driver cell phone records revealing the amount of time spent on the phone during the workday.

● Cell tower records where the calls begin in one location and end in another, thereby proving cell phone use while driving.

● Texting records, which may even include the actual texts.

● Telemetric records which correlate with the phone records to provide an accurate picture of this risky behavior.

● Details about the employer’s cell phone policy, and the extent of its policy implementation and enforcement.

An employer must demonstrate that a policy has been enforced. The policy must be more than words on paper. Further, an employer should not in any way develop a culture where employees feel that they need to use cell phones while driving.

Leave No Stone Unturned

Employers can never be 100-percent protected in the event of a lawsuit. However, if employers can show they implemented a total ban policy, educated employees, monitored compliance, and enforced the policy, they will be in a more defensible position than if they had not followed these practices. As Clement described it, an employer should have an “enforced cell phone policy.”

The best practice is to prohibit all employees from using any cell-phone device while driving in any vehicle during work hours or for work-related purposes. Regarding off-the-job hours, precedent has been set by lawsuits. Thus, employers may want to extend their policies to cover off-the-job use of company-provided wireless devices, use of personally-owned devices that are reimbursed by the company, and use of devices in company-provided vehicles. All work-related cell-phone use while driving should be banned 24/7.

U.S. Department of Transportation (DOT) regulations include interstate commercial fleets, but most vehicles — including intrastate operations and passenger vehicles — are not included in these federal rules.

Non-commercial drivers such as field sales people and other employees who drive to service calls, meetings, events and job-related errands are exposed to crash risk just as the commercial drivers are. Despite this, some employers exempt operations, such as their field sales teams, from policies due to productivity concerns. However, because of the large number of work-related miles traveled by mobile sales operations compared to other employees, their exposure is higher and thus their crash risk is likely higher.

In the case of the cable company truck involved in the fatal crash that was described earlier, many recommended corporate cell phone policy practices were not implemented.

The field technician driver’s phone records showed habitual cell phone use and texting while on the job.

Had he been paying full attention to driving on that two-lane highway the morning of Jan. 25, 2010, experts testified that there would have been plenty of time for him to stop safely without hitting the vehicle occupied by Mindy Ragsdale and Peggye Woodson.

Clement was the plaintiff’s attorney who investigated the company’s safety practices. Part of his strategy was to expose the lack of a strong, enforced cell-phone policy as a factor that could have helped to prevent the crash. During videotaped depositions, a company executive testified that the company didn’t “think that’s respectful to our associates or reasonable in this day and age to ban communications,” and that the company trusted employees to “have really great judgment” regarding cell-phone use while driving. The collision and resulting tragedy showed just how wrong the company’s executives were.

After a year-long investigation, and two weeks before the ensuing wrongful-death lawsuit trial, the company settled for a confidential amount. The case also attracted the type of widespread national media attention that was damaging to the company’s reputation.

We now know from public opinion polls and behavior surveys that, despite the public’s awareness of the dangers of cell phone distracted driving, for many people, this is a difficult behavior to change without the incentive of policies or laws that they know will be enforced.

Companies with strong safety cultures take action by reducing risk in areas that protect their employees and the communities in which they operate. CEOs of leading companies committed to best practices in safety understand that safety is good business.

Banning the use of cell phones while driving is a risk-reduction effort. Employers have an obligation to protect their employees and others with whom they share the roads. The time for company leaders to act is now.
This article is based on the NSC white paper entitled, “Employer Liability and the Case for Comprehensive Cell Phone Policies.” For the original version, visit www.nsc.org.

About the Author

David Teater is senior director of Transportation Strategic Initiatives for the National Safety Council (NSC). Founded in 1913 and chartered by Congress, the NSC relies on research to determine optimal solutions to safety issues. For more information, visit www.nsc.org.

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