In the not too distant past, cell phones were considered, if not a luxury for most, certainly a toy for the wealthy or tech savvy among us. Not so today.
According to PewResearchCenter, as of January 2014, 90 percent of American adults owned a cell phone. According to U.S. Census Bureau estimates, the number of Americans aged 18 and over in 2014 was 245,308,220. Extrapolating those figures would result in nearly 221,000,000 cell phones in the United States alone. Fast forward two years, and the number of cell phones in use has almost certainly increased.
And, that’s just adults. The number of Americans under the age of 18 – who make up a large percentage the country’s population – are among the heaviest users of cell phones.
Cell phones today have become as much of a business tool as the computer. Cell phones conveniently allow businesses to instantly connect with customers, suppliers and employees. This instant access leads many people to use their cell phone while driving. As valuable a tool as a cell phone is, however, its use while driving raises a myriad safety concerns.
The following are some startling statistics from the U.S. Department of Transportation:
- In 2014, nearly 3,200 people were killed and 431,000 were injured in motor vehicle accidents involving distracted drivers.
- As of December 2014, 159.3 BILLION text messages were sent in the U.S.
- Ten percent of all drivers aged 15 to 19 involved in fatal accidents were reported to be distracted at the time of the crashes. This age group has the largest proportion of drivers who were distracted at the time of the accidents.
- A 2015 Erie Insurance distracted driving survey found that one-third of drivers admitted to texting while driving, and three-quarters said they’ve seen others do it.
Employer Liability: Vicarious Responsibility
Employers have faced liability for the actions of their employees, including lawsuits for negligence for using cell phones while driving. The most common legal theory under which an employer may be found liable for the actions of an employee is vicarious liability. Companies have been found liable -- and they and their insurers have paid out millions in settlements and judgements – even when those organizations have had cell phone policies in place; when employees were driving company-owned vehicles while running personal errands; when employees made personal calls on company-provided phones; and even when an employee was driving his/her own vehicle while attending to personal business when the distraction was business related.
- Texas, 2012: Coca-Cola paid $24 million to a woman who was injured in an accident with a Coke salesperson who was driving a company car while using a hand-free phone. Even though Coca-Cola had a cell phone policy in place, the company was still found liable.
- Florida, 2001: In the first vicarious liability case to bring in a verdict, Dyke Industries, a lumber company was found liable and $16 million awarded to the plaintiff who was injured when struck by a truck driven by a Dyke employee. The driver’s cell phone records showed he had been using his phone at the time of the accident.
- Pennsylvania, 2003: A stockbroker working for Salomon Smith Barney was driving to a non-business event on his own time in his own vehicle and talking on his own cell phone when he struck and killed a 24-year-old motorcyclist. The employee admitted he was making cold calls, a normal, company business practice. Salomon Smith Barney was found negligent and a $500,000 settlement resulted.
At latest count, 46 states, the District of Columbia, Puerto Rico, Guam and the U.S. Virgin Islands have instituted bans on text messaging for all drivers. Fourteen states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban the use of handheld cell phones by all drivers. At this point, no state bans all cell phone usage for all drivers.
For current state-by-state information regarding cell phone laws, please click here.
As we’ve already seen, having a company policy banning the use of cell phones while driving does not prevent a company from facing liability should an accident occur.
Many companies in the U.S. have developed policies regarding the use of cell phones while employees are driving. However, the piece that’s missing in most of these policies is how these companies enforce and audit employee compliance. Without monitoring employee adherence, employers have virtually no way of knowing if employees are using cell phones while driving or not – until the next accident happens.
As a business owner or manager, you face enormous risk every day for the actions of your employees and their use of cell phones. Risks include not only financial losses – legal judgments, increased insurance premiums, workers’ comp claims, fines and repair costs – but injury to your organization’s reputation. Implementing policy regarding use of cell phones while driving is not enough; you must demonstrate you’ve done everything in your power to audit and enforce employee compliance with your policy.
Technology is on the market today that is capable of disabling cell phones in a moving vehicle and returning them to service when the vehicle stops. We strongly recommend that you research such technology and work with your legal counsel and your broker or insurance provider to make the necessary investments and ensure the correct policies are in place to protect your business, reputation and most of all the lives of your employees and anyone who shares the road with them.
Article by David A. Harnois, CCM.
David is a Proud Employee Owner of Affinity Club Underwriters, specializing in commercial and group program business. David provides insurance solutions for hundreds of clubs throughout the world. He may be reached at (973) 984-1000 x111 or at www.affinityclubs.com.
Founded in 2007, Affinity Club Underwriters is a wholesale program insurance provider specializing in the club, golf and hospitality sector. They offer claims management services; operations and coverage audits; policy and information storage and archaeology; RFP preparation; market analysis; and help in developing specific loss control programs.
Affinity is the exclusive provider of the Affinity Club Program for private and semi-private golf and country club venues. Affinity is the only insurance program administrator led by golf industry experts.