Yesterday we talked about the efforts to end distracted driving, especially the use of cell phones, both talking and texting, which adds to the distractions that drivers already face. New cars have such technological screens that drivers can access just about anything. This would compound the problem of focusing on the road, not social media, or other diversions. Commercial and public transportation vehicles are at risk, as well as personal and recreational drivers. In 2007, 413,000 large trucks were involved in traffic crashes in the U.S. and 4,584 were involved in crashes that were fatal, killing a total of 4,808 people. Of those killed in crashes involving commercial motor vehicles, 75 per cent were occupants of other vehicles.
Although a company may not be directly liable for its employees’ actions, employers may be held vicariously liable for dangerous behavior and negligent actions of their employees while conducting company business. Today’s Employers’ Vicarious Liability litigation is often aimed at employers who fail to prohibit their employees from using distracting devices for business purposes, such as cell phones, while driving. Juries usually react unfavorably to employers whose employee drivers were found guilty of causing an accident while using a cellular device. The most viable measure that we as a society can explore is an attempt to educate new drivers on the dangers of driving while distracted.
Mitigating driving distractions in this country is very difficult, but mitigating a company’s exposure to vicarious liability is often manageable under the guidance and knowledge of the right insurance professionals. They are able to work with the company to develop an appropriate policy regarding cell phones. This policy won’t necessarily absolve an employer from any and all liability, but there’s no doubt that the employer with a policy in place will be in a better position legally than an employer who does not. This helps the court recognize that the employer discussed with employees the importance of this issue.
Twenty-one states in the U.S. have passed laws that ban texting and emailing while driving. Others have banned talking on a cell phone altogether unless a hands-free device is used. (This has been proved to be no safer than hand-held ones.) Federal employees are banned from typing on a mobile phone while driving. It is interesting that other countries around the world have long prohibited the use of cell phones while driving, such as Great Britain, who made it a criminal offense to use a cell phone while driving in 2003, and Japan outlawed use of a cell phone while driving in 2002. Japan even made it punishable by up to three months imprisonment.) Statewide, there have been proposed over 200 new bills to combat distracted driving in the U.S.
Under the legal theory of respondeat superior, referred to as vicarious responsibility, an employer is liable for the actions of an employee if the employee was acting within the scope of his or her employment at the time of the accident. Thus, if an employee causes injury through negligent conduct, during employment, the victim is entitled to sue the employer directly for damages. If an employee operates a vehicle negligently as a result of using a cell phone and injures another motorist or pedestrian, that victim may sue the employer directly. Because detailed cell phone records are accessible, evidence of cell phone use at the time of the accident is fodder for plaintiffs’ attorneys.
There are many things that companies can do to avoid litigation, such as the use of software that helps manage their risk of their employees’ negligent driving. One such maker of software, ZoomSafer, has designed software that is easily installed on an employee’s smart phone to help prevent distracted driving. It is activated manually by the employee at the time he/she begins to drive. It can also activate itself by using GPS signals to automatically detect when the employee is driving. It also manages inbound calls, texts and emails according to preference and can automatically notify others when the owner of the cell phone is driving. (It’s like having your own personal secretary!)
Also, this product allows each employer to manage the controls on an individual device level. Rather than depending on individual employee’s compliance with the company’s cell phone policy, this enables the employer to directly manage an employee’s ability to access a cell phone while driving. Software such as this helps companies’ safety and risk management by providing a cost-effective tool that enforces their paper-based safe driving policies. In the event of an employee-caused car accident, this extra layer of control can be critical in insulating an employer from vicarious liability.
Any manner that can protect drivers, passengers, pedestrians, and even animals from being injured or killed by distracted drivers is worth pursuing. Ray LaHood, U.S. Secretary of Transportation, recently declared, “distracted driving has gone from a dangerous practice to a deadly epidemic.”