As it stands, 44 states have bans on text messaging while driving and 12 states ban any mobile phone use while driving at all. Some states have even gone as far as banning operating navigation devices while in a moving vehicle. It’s clear that this is an issue lawmakers are taking seriously. A look back at our blog about distracted driving safety statistics shows us why. Understanding the laws around distracted driving as well as your company's liability is the next step in ensuring you have a safe fleet on the road.
Businesses Face Massive Liability
Businesses whose employees are distracted drivers face massive liability. As we’ve seen, cell phone use is particularly dangerous, and there are specific laws aimed at addressing that danger. Therefore, if a company employs drivers who are distracted specifically because of cell phones use they may face even greater liability.
The legal theory respondeat superior, known also as vicarious responsibility, states that an employer is liable for the actions of an employee if that employee was performing their job at the time of an accident. In other words, if an employee is driving and texting and they injure another driver or passenger, the company can be sued directly. Of course you don’t want this to happen, but many people do not realize just how expensive the average payout is for negligent driving, but more on that shortly.
Before that let’s look at why negligent driving is so hard to defend against, and why a preventative plan is the best plan.
A Deeper Look at Negligence
When an employee is involved in an accident while using a mobile phone there is very little a company can do to defend themselves or argue that the accident was not caused by negligence.
- Plaintiffs are entitled to detailed cell phone records that provide almost incontrovertible evidence that a negligent driver was using their phone at the time of the accident.
- A legal doctrine known as negligence per se states that any act, which violates a safety statute, will be considered negligent. Therefore any driver using a cell phone in a state that bans cell phone use while driving (44 at the moment with more on the way) is negligent.
- Even in states where there are no bans on cell phone use while driving, plaintiffs can introduce the fact that a driver was using their cell phone as evidence of negligence.
It is very difficult to prove that a driver wasn’t negligent, but what about ‘performing their job’? Unfortunately this is another area where a company has very little power:
- The language around employees’ actions is defined broadly. An employee is considered to be within the scope of employment whenever the employee’s action, at least in part, provides a benefit to the employer.
- The definition is so broad that it’s not uncommon for a company to be charged with vicarious responsibility even when they’re using a cell phone outside of regular business hours.
Being Outside the Scope of Employment Isn't Enough
Even if you can prove an employee was outside the scope of their employment when a crash occurred, you’re still not in the clear. If you provided an employee with a cell phone or expected them to use a phone while driving your company’s policies can be called into question, and you can be directly liable for the accident rather than vicariously liable. Therefore any company policy, even if it is only an informal expectation, to make calls while driving, can wind up costing a company millions of dollars.
The average amount a company pays out is $24,500 per crash, $150,000 per injury, and $3.6 million per fatality, and the cost can be a lot higher.
In 2009 Holmes Transportation Inc. was found vicariously liable after one of their 18-wheel truck drivers crashed into a plaintiff's vehicle while checking their phone; they were ordered to pay $18 Million.
In 2001 an employee of Dykes Industries seriously injured a woman in a collision. Although he claimed he was not distracted at the time, cell phone records proved otherwise and Fyke Industries was held vicariously responsible; they were ordered to pay $21 million.
And in 2010 a broker at Salomon Smith Barney struck and killed a 24-year-old motorcyclist while on their cell phone. Even though the broker was on personal time and using a personal cell phone during the accident the company agreed to $500,000 believing that they could be charged with direct liability.
It’s clear that courts take driving negligence seriously and there are huge financial consequences for accidents.
Distracted Driving is More Than Just Cell Phones
Also remember that although there is a lot of information out there about cell phone use and distracted driving, and although many high profile cases have involved cell phones, distracted driving covers everything that takes your eyes off the road and hands off the wheel. This includes eating, changing radio stations, reading, talking to passengers and yes, mobile phone use.
So now that you have a sufficient understanding of distracted driving statistics and distracted driving liability, be on the lookout for the third and final installation of this blog series detailing how you can build and enforce a better distracted driving policy.