Dead Man's Curve Cell phones can turn any road into a Jan & Dean song.

Cell phones: You love their convenience and that you can makecalls in roadside emergencies, but not their constantinterruptions-or the danger to drivers. And there are dangers.It's difficult to tell how many accidents involve driversdistracted by cell phones, because states are only now beginning tokeep track. However, a 1997 study by Donald Redelmeier and RobertTibshirani, published in the New England Journal ofMedicine, reported that the risk of a collision increasesfourfold if a driver is using a cell phone. That's about thesame risk as for drunk driving. And according to the study,hands-free cell phones don't seem to help much because, in themajority of cases, it's the conversation itself that seems todistract the driver, not the process of dialing. Another majorfactor is responding to an incoming call, responsible for 42percent of cell-phone-related car crashes, according to a 1996study 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 phonesby drivers. In the United States, a handful of communities haveinstituted such bans, and numerous cities and states areconsidering them. Proposed legislation in this area is meetingstiff resistance, however, from the cellular communicationsindustry, which contends that using a cell phone while driving isno more distracting than eating a hamburger, tuning the radio ortending a child. Cell-phone users are likewise resistant to givingup the convenience. Although a 1997 study by the Insurance ResearchCouncil found that 84 percent of cell-phone users believe using aphone while driving is a distraction and will increase thelikelihood of a car accident, 61 percent of those same phone userssay 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 inColumbus, Ohio, teaches entrepreneurship law. Freelance writer JaneEaster Bahls specializes in business and legal topics.

Risk Factors

What does all this have to do with business? Well, if one ofyour employees causes an accident while talking on a cell phonewith a customer or checking in with the office, your company couldbe held liable. That's what happened in 1995 when a stockbroker and financial consultant for Smith Barney Inc. in Allentown,Pennsylvania, ran a red light, crashed into a motorcycle and killed24-year-old Michael Roberts. The stock broker was sent to prisonfor vehicular homicide. His employer, which encouraged employees touse cell phones while driving, agreed to a sizable out-of-courtsettlement.

Tom Cunningham, an attorney with Pingel & Templer in WestDes Moines, Iowa, notes that your company's liability in thisarea is no different from its liability for other damage caused byyour employees while they're working, whether due to caraccidents or anything else. As long as the person is an employee(and not an independent contractor) and is acting within the scopeof employment, the injured party may sue the one who caused thedamage, the employer, or both. And chances are good that a lawsuitwould include the employer-because companies are perceived ashaving "deep pockets."

If your company encourages employees to talk on the phone whiledriving, 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 "recklessdisregard for the consequences" for conduct that's notintentional but more than merely negligent. In those states, acourt or jury can assess a higher damage award because of thereckless behavior involved.

Company Policy

Of course, as an employer, your chief concern will be the safetyof your employees and the public, rather than the potential forliability. Still, by establishing a company policy that discouragescell-phone use while driving, you may be able to reduce yourinsurance rates while you improve safety and decrease the chancesof a lawsuit. Madelyn Flannagan, assistant vice president forresearch and development with the Independent Insurance Agents ofAmerica Inc. in Alexandria, Virginia, notes that in the event of anaccident, the agent may note in his report that the driver wastalking on a cell phone. "That puts your coverage at risk forrenewal, or you may pay a higher price," she says. Flannaganadds that some agents and companies offer meetings on cell-phonesafety for companies with multivehicle policies, much like safetymeetings they offer about drug testing.

"A business owner should step back and ask if it'sabsolutely necessary that employees be making these calls whiledriving," Cunningham advises. "If not, you may be able toenforce a policy that employees pull over before using thephone." Unless phoning while driving is truly critical, hesays, it's safer not to encourage it. "If it is, get themthe equipment that's the least distractive." Hands-freemodels with voice-activated dialing at least eliminate the problemof drivers reaching for the phone and taking their hands off thewheel to dial it.

Here are some more tips:

• Make sure you know whether your state or city has outlawedcell-phone use while driving. To date, only a few scatteredcommunities have done so, but as public outcry increases, more mayfollow suit.

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

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

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

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

The next time you see someone yakking on the phone while dodgingthrough traffic, remember those who've died-and think aboutwhat 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.