Posted: July 13, 2012
By T. Scott Gilligan, NFDA general counsel
In the past 20 years, reports from government agencies and health groups documented the dangers of second-hand smoke from cigarettes. The mounting evidence led to several campaigns to restrict smoking in public areas. How well did those campaigns work? Consider that in 2000, no states prohibited smoking in private sector work sites, restaurants and bars. However, by 2010, 26 states had laws prohibiting smoking in all of those three venues. Moreover, 10 additional states barred smoking in at least one of those venues. Therefore, in only a decade, two-thirds of the states recognize the dangers of second-hand smoke and enacted smoking bans in public areas.
We are now seeing a similar movement with respect to the dangers of driving while using cell phones and personal electronic devices (PEDs). Reports from consumer safety groups and government agencies have documented the dangers of driving while speaking on cell phones or using PEDs to text, e-mail or access the Internet. In that regard, consider the following reports:
- A Virginia Tech Transportation Institute study of commercial drivers found that a safety-critical event is 163 times more likely if a driver is texting, e-mailing or accessing the Internet.
- The American Automobile Association attributes 330,000 highway injuries annually to cell phones, while the Harvard Center for Risk Analysis found cell phone-using drivers are responsible for 2,600 deaths a year.
- A study by the University of Utah shows that motorist on the blood-alcohol edge of being legally drunk drive better than sober drivers using cell phones or otherwise distracted.
- The National Safety Council estimates that nearly one-fourth of the automobile accidents in 2010 involved a driver using a cell phone.
- The National Safety Council has also concluded that more than 30 research studies have found that hands-free devices offer no safety benefits because hands-free devices do not eliminate the cognitive distraction of conversation.
As a result of the increasing evidence of danger posed by cell phone and PED use by drivers, federal, state and local governments have responded with advisories, recommendations, and legislative bans. Among the actions taken include the following:
- In October, 2011, the National Transportation Safety Board made a safety recommendation to all 50 states and the District of Columbia recommending a statewide prohibition on the use of both handheld and hands-free cellular telephones by all commercial drivers, except in emergencies.
- Effective January 3, 2012, the Federal Motor Carrier Safety Administration issued a regulation prohibiting drivers of commercial motor vehicles with a gross weight of over 10,000 pounds and engaged in interstate commerce from using handheld cell phones.
- OSHA has adopted a distracted driving initiative in which it indicates that it will charge employers with violation of the OSH Act where the employer requires their employees to text while driving or organize work so that texting is a practical necessity even if it is not a formal requirement.
- Ten states (CA, CT, DE, MD, NV, NJ, NY, OR, WA and WV) and the District of Columbia prohibit all drivers from utilizing handheld cell phones. Thirty-two states ban the use of cell phones by novice drivers.
- Thirty-nine states (AL, AK, AR, CA, CO, CT, DE, GA, ID, IL, IN, IA, KS, KY, LA, ME, MD, MA, MI, MN, NE, NV, NH, NJ, NY, NC, ND, OH, OR, PA, RI, TN, UT, VT, VA, WA, WV, WI and WY) and the District of Columbia ban all drivers from engaging in text messaging. In addition, five states prohibit text messaging by novice drivers.
Even in cases where the use of a cell phone or PEDs by drivers is not illegal, employers have paid out multi-million dollar verdicts and settlements when employees using cell phones or PEDs while driving have caused accidents. Many times the police are not aware that an employee was speaking on a cell phone or using a PED at the time of the accident. However, plaintiffs can often prove cell phone and PED use by subpoenaing the driver’s cell phone records, cell tower records and texting records. Liability against employers has been imposed under a number of different scenarios. Consider the following:
- In 2009, an off-duty police officer in Maryland was receiving a text message moments before his police cruiser struck another vehicle resulting in a fatality. Even though the police officer was off-duty, the county was held liable for a $4 million dollar verdict because the officer was driving a county-owned police cruiser.
- In 2006, an electrical contracting company settled for $4.1 million dollars in an Illinois case involving an employee who ran a red light in a company van while checking his global positioning system on his cell phone. He broadsided a vehicle and severely injured an elderly woman.
- In 2007, a paper company in Georgia settled for $5.2 million dollars when an employee rear-ended another vehicle resulting in two deaths. Cell phone records showed that the employee was talking on her company-supplied cell phone.
- In a 2007 case from Ohio, a jury imposed a $21.6 million dollar verdict against a technology company when an employee driving a company car rear-ended another vehicle resulting in a fatality. Cell phone records showed that the employee driver was talking to her husband on a cell phone at the time of the crash.
- In 2002, a Georgia construction company paid $5 million dollars in a settlement when its employee reached over to a mounted hands-free cell phone that had been provided by the employer to retrieve a message. While reaching for the phone, the employee crashed into a stopped car causing severe injuries to its passenger. Although the employer claimed that the driver was commuting to his job and was off the clock at the time of the crash, the cell phone had been provided by the company and the employee was returning a work-related call.
- In one of the largest verdicts to date, a Missouri commercial transportation company paid a verdict of $24.7 million dollars in 2008 when its employee, who was checking his phone for text messages, ran his company truck into ten vehicles that had stopped in backed up traffic.
Given the increasing number of states restricting cell phone and PED use by drivers, the growing threat of litigation, and the documented dangers posed by drivers using cell phones and PEDs, is it time for funeral homes to ban employees from using cell phones and PEDs while driving? Add into this mix the new public awareness campaign being orchestrated by NFDA and Federated Insurance over the dangers of distracted driving, and it becomes evident that funeral service needs to practice what it preaches.
If a funeral home decides to heed the danger to its employees, to its financial security, and to the general public posed by driving while using cell phones and PEDs, NFDA has created a sample cell phone and PED policy that is available to NFDA members at no cost; visit www.nfda.org/legalforms to downloaded the form.
The sample policy is designed to very restrictive. Some funeral homes may decide to eliminate or soften some of the restrictions, such as the ban on using hands-free devices. Whether to use and/or alter the policy is up to the management of each funeral home after measuring the risk and, of course, the laws of its state.
Adopting a cell phone and PED policy will not only promote the safety of funeral home employees and the public, it will also reduce liability risk for the funeral home if an employee violates the policy and causes an accident while using a cell phone or a PED. A funeral home that has adopted and implemented a cell phone /PED ban will be able to defend itself against claims that it was negligent in allowing employees to use these devices while driving. Although the funeral home may not be able to escape all liability, having a policy in place will help to reduce exposure to multi-million dollar verdicts.
The protections provided to an employer by having a cell phone/PED policy will be illusory if the policy is not enforced. A funeral home that adopts the policy, but does not enforce it, will lose the protection provided by the policy. Juries will be just as likely to find a funeral home that has a policy, but does not enforce it, to be as negligent as a funeral home that does not have a policy.
To obtain the liability protection of a cell phone/PED policy, a funeral home should take all of the following steps:
- Adopt a cell phone/PED policy that expressly provides for employee discipline for violating the policy.
- Communicate the policy to all employees and document that each employee has signed off on the policy.
- In addition to communicating the policy, conduct a training session on the importance of complying with the policy using training aides like the NFDA/Federated Insurance DVD on distracted driving entitled “In the Blink of an Eye.” The DVD and related materials on distracted driving are available to all NFDA members at no charge at www.nfda.org/distracteddriving.
- Make sure that the policy is enforced throughout the entire chain of command. Do not allow exceptions for upper management.
- Enforce the policy. If an employee violates the policy, impose the disciplinary measures spelled out in the policy and document both the violation and the disciplinary measures in the employee’s file.
If an NFDA member has a question regarding this article, please contact General Counsel Scott Gilligan at 513-871-6332 for a complimentary consultation.