Friday, July 6, 2012
Valerie Van Brocklin
Drivers who get into vehicle collisions while talking or texting on cell phones are now putting their employers at risk of legal action. Just this May, The Washington Post reported on lawsuits against companies arising from vehicle collisions their employees were involved in while using their cell phones.
Given the jury awards, look for more such litigation. One jury awarded $21.6 million to the family of a 32-year-old woman killed in a crash. A federal magistrate ordered a trucking company to pay $18 million for an accident that occurred when one of its drivers reached for a cell phone.
Other companies, facing plaintiffs armed with cell phone records, are settling. An Arkansas lumber company whose salesman crippled a 78-year-old woman paid $16.1 million rather than going to trial.
Employee cell phone use raises another issue that may only be resolved through litigation. Does workers’ compensation cover an officer injured by his own distracted driving while using a cell phone for agency business? If so, that’s likely to increase workers’ compensation rates. California law requires such coverage. Do you know if your agency’s compensation plan covers such injuries?
Distracted Driving Brings New Legislation & Crackdowns
Distracted driving has become the new DWI, according to NTSB board member Robert Sumwalt.
In the wake of terrible crashes attributed to drivers distracted by electronic devices, the NTSB has recommended that the 50 states and D.C. ban driver use of all portable electronic devices. The proposed ban would include hands-free devices based on research that they aren’t much safer than handheld ones. Exceptions would be devices that assist the driver in getting to a destination and use in emergency situations.
April has been designated Distracted Driving Awareness month. Many local police agencies use it to educate the public about the dangers of cell phone use while driving and to launch zero tolerance ticketing campaigns.
- Distraction from cell phone use while driving (handheld or hands-free) extends a driver’s reaction as much as having a blood alcohol concentration of .08. (University of Utah)
- The number one source of driver inattention is use of a wireless device. (Virginia Tech/NHTSA)
- Drivers who use cell phones are four times as likely to get into crashes serious enough to injure themselves. (NHTSA, Insurance Institute for Highway Safety)
- Ten percent of drivers aged 16 to 24 years old are on their phone at any one time. (NHTSA)
- Driving while distracted is a factor in 25% of police-reported crashes. (Nationwide)
- Driving while using a cell phone reduces the amount of brain activity associated with driving by 37%. (Carnegie Mellon)
None of this is news to traffic cops. And with increased risk of harm, comes increased risk of liability. Time to bring in the lawyers.
Should Police Be Exempt?
Many of the states restricting cell phone use while driving exempt police officers in the performance of their duties. The question LE agencies need to answer is whether the police should be exempt. The answer involves public perception, public policy, officer and citizen safety, agency liability and workers’ compensation rates and payouts.
Some online comments reflect some of the public’s perception:
“Here in Connecticut, driving while using a cell phone is a $100 ticket. Yet, police are exempt! What? I guess the legislature gave them ‘special non-distractable’ powers.
"I have seen on more than one occasion a cruiser glide right through a red traffic light, and yes, the cop was chatting away on a cell phone.”
If police do have “special non-distractible” powers, a Washington police chief wasn’t exercising his as he scrolled through newspaper headlines and email on his smart phone while stopped at a red light. Thinking traffic had begun to move he took his foot off the brake and hit the car in front of him. Although emergency vehicles are exempt from Washington’s ban on reading electronic messages while behind the wheel, to his credit the Chief admitted, “But that’s no excuse. Was this an essential communication for me to be on at the time? No.”
A police officer causing a distracted driving accident is likely to make at least local news, further fueling public perception.
Announcing a zero tolerance crackdown on handheld cell phone use while driving as part of April’s Distracted Driving Awareness month, Martinez, California Police Chief Gary Peterson stated for the media
, “Distracted driving is a very serious issue. Cell phone use and texting, while driving is such a serious concern that the Department will have zero tolerance policy during the month. Is that text message or cell phone call really worth $159 or the increased chance of a collision?”
That prompted an online reader comment, “The police are the biggest offenders. While I do see citizens on their phones while driving, I see police officers doing it far more often. Why do they get to talk on their cell phones? They have a radio and a computer at their disposal already. They should start at this campaign at the gates of every police department.”
for an investigation into distracted driving by officers using a computer.]
Those in the profession who want to argue you can’t expect police not to use cell phones while driving are going to have a tougher case to make in the light of police agencies who have adopted their own limitations.
Some Police Agencies are “Driving the Drive”
Just this year, Troy (Pa.) Police Department
announced a policy that requires officers to pull over to talk if they receive a call on their department cell phone while driving—absent an emergency.
Two years ago, the Blackfoot (Idaho) Police Department
banned texting, email or instant messaging on handheld devices while operating a city vehicle while the vehicle is in motion. Additionally, if any officer is involved in an accident in a city vehicle and found to have been texting, emailing, or talking
on their cell phones, the officer will be considered at fault with the accident review board. Neighboring departments reportedly enacted similar policies.
Other law enforcement agencies have joined this drive
. Although Washington exempted police in its statute making texting and handheld cell phone use a primary offense, the state patrol proactively applied it to its troopers by agency order.The Florida Highway Patrol mandated hands-free voice communication for its troopers even in the absence of any state statute. Last year Cheyenne, Wyoming, enacted an ordinance permitting only hands-free cell phone use and didn’t exempt police officers.
Where Does this Leave Cell-Phone-Chatting Cops & Their Agencies?
The law on distracted driving is shifting sands beneath our feet right now. There’s precedent for holding employers liable for employees’ distracted driving collisions resulting in big money payouts. Statutes are evolving.
Attention is also being given to workers’ compensation claims and rates. If an employer’s plan must cover employee injuries from distracted driving, rates may go up. Local, state and federal government budgets already facing unsustainable pension plans and other costs will have to consider this.
Some police agencies have done the same. Those that haven’t may need to reconsider. A statute exempting police doesn’t necessarily confer immunity from liability in an accident caused by a distracted officer.
Imagine the impact on jurors when the plaintiff:
- Calls your agency’s most experienced traffic cop to testify on the increased dangers of driving while using a cell phone
- Then calls the chief of another LE agency to testify about their policy limiting officers’ cell phone use while driving
- And finally puts your agency’s chief on the stand to testify about the department’s zero tolerance crackdown on citizens’ distracted driving and why he or she implemented it.
Weigh in, dear readers. What do you think about the costs of exempting police—or not—from distracted driving legislation?