Dead Man's Curve

Cell phones: You love their convenience and that you can make calls in roadside emergencies, but not their constant interruptions-or the danger to drivers. And there are dangers. It's difficult to tell how many accidents involve drivers distracted by cell phones, because states are only now beginning to keep track. However, a 1997 study by Donald Redelmeier and Robert Tibshirani, published in the New England Journal of Medicine, reported that the risk of a collision increases fourfold if a driver is using a cell phone. That's about the same risk as for drunk driving. And according to the study, hands-free cell phones don't seem to help much because, in the majority of cases, it's the conversation itself that seems to distract the driver, not the process of dialing. Another major factor is responding to an incoming call, responsible for 42 percent of cell-phone-related car crashes, according to a 1996 study by the Japanese National Police Academy.

The risk of accidents has prompted Australia, England, Germany, Japan and nine other nations to ban the use of handheld cell phones by drivers. In the United States, a handful of communities have instituted such bans, and numerous cities and states are considering them. Proposed legislation in this area is meeting stiff resistance, however, from the cellular communications industry, which contends that using a cell phone while driving is no more distracting than eating a hamburger, tuning the radio or tending a child. Cell-phone users are likewise resistant to giving up the convenience. Although a 1997 study by the Insurance Research Council found that 84 percent of cell-phone users believe using a phone while driving is a distraction and will increase the likelihood of a car accident, 61 percent of those same phone users say they still use their phones at least sometimes while driving, and 30 percent say they phone and drive frequently.

Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

Risk Factors

What does all this have to do with business? Well, if one of your employees causes an accident while talking on a cell phone with a customer or checking in with the office, your company could be held liable. That's what happened in 1995 when a stock broker and financial consultant for Smith Barney Inc. in Allentown, Pennsylvania, ran a red light, crashed into a motorcycle and killed 24-year-old Michael Roberts. The stock broker was sent to prison for vehicular homicide. His employer, which encouraged employees to use cell phones while driving, agreed to a sizable out-of-court settlement.

Tom Cunningham, an attorney with Pingel & Templer in West Des Moines, Iowa, notes that your company's liability in this area is no different from its liability for other damage caused by your employees while they're working, whether due to car accidents or anything else. As long as the person is an employee (and not an independent contractor) and is acting within the scope of employment, the injured party may sue the one who caused the damage, the employer, or both. And chances are good that a lawsuit would include the employer-because companies are perceived as having "deep pockets."

If your company encourages employees to talk on the phone while driving, that could increase the damages you have to pay. Cunningham notes that some states recognize degrees of negligence, using terms such as "gross negligence" or "reckless disregard for the consequences" for conduct that's not intentional but more than merely negligent. In those states, a court or jury can assess a higher damage award because of the reckless behavior involved.

Company Policy

Of course, as an employer, your chief concern will be the safety of your employees and the public, rather than the potential for liability. Still, by establishing a company policy that discourages cell-phone use while driving, you may be able to reduce your insurance rates while you improve safety and decrease the chances of a lawsuit. Madelyn Flannagan, assistant vice president for research and development with the Independent Insurance Agents of America Inc. in Alexandria, Virginia, notes that in the event of an accident, the agent may note in his report that the driver was talking on a cell phone. "That puts your coverage at risk for renewal, or you may pay a higher price," she says. Flannagan adds that some agents and companies offer meetings on cell-phone safety for companies with multivehicle policies, much like safety meetings they offer about drug testing.

"A business owner should step back and ask if it's absolutely necessary that employees be making these calls while driving," Cunningham advises. "If not, you may be able to enforce a policy that employees pull over before using the phone." Unless phoning while driving is truly critical, he says, it's safer not to encourage it. "If it is, get them the equipment that's the least distractive." Hands-free models with voice-activated dialing at least eliminate the problem of drivers reaching for the phone and taking their hands off the wheel to dial it.

Here are some more tips:

• Make sure you know whether your state or city has outlawed cell-phone use while driving. To date, only a few scattered communities have done so, but as public outcry increases, more may follow suit.

• Check with your insurance carrier to see if you can get a lower rate if you take steps to avoid cell-phone-related accidents. Ask about brochures on cell-phone safety.

• Consider writing a company policy on the issue. Is it your policy that employees should pull over to use the phone? Not use the phone in traffic? Wait until they arrive at their destination?

• Educate your employees on the policy, just as you would for other safety-oriented issues. Consider having them sign a document stating that they understand it.

A tragic story: This past November, a Pennsylvania man who was dialing his cell phone cruised through a stop sign, slammed into a car and killed 2-year-old Morgan Lee Pena. The child's parents, Patricia and Robert Pena, also of Allentown, Pennsylvania, have since become national activists against cell-phone use by people who are driving, hoping to make that practice as socially unacceptable-and illegal-as driving drunk. They've also filed a lawsuit against the driver.

The next time you see someone yakking on the phone while dodging through traffic, remember those who've died-and think about what you and your business can do about it.

Contact Sources

• Independant Insurance Agents of America Inc., mflannagan@iiaa.org, www.independentagent.com;
• Pingel & Templer, (630) 574-4232, tcunningham@mail.wdmllaw.com.