How often are drivers distracted by their jobs, particularly by using their phones while behind the wheel?
Are employers liable for any auto accidents or fatal crashes that result from their employee being distracted by work and causing a collision?
Distracted Drivers Are Working Behind the Wheel
According to a recent Harris Poll, a significant number of distracted drivers are distracted by work-related issues:
- Employees on their phone for work while driving, talking (38%);
- Employees on their phone for work while driving, texting (17%);
- Employees on their phone for work while driving, e-mail (10%).
- Over 25% reported their employer called or texted them even though the boss knew they were driving at the time.
See, “The boss made me do it: 43 percent admit using smartphone because of work while driving, survey says,” by Fredrick Kunkle and published on December 1, 2017 by the Washington Post.
Employer Liability for Distracted Drivers Using Phones Behind the Wheel
The idea that the employer may share responsibility for serious or fatal motor vehicle accidents caused by a distracted driver is not new. Two years ago, the National Safety Council published a white paper entitled, “Employer Liability and the Case for Comprehensive Cell Phone Policies.”
Six years ago, defense lawyers were warning employers that they can be held liable for accidents involving employees distracted while driving under the theories of (1) respondeat superior or (2) direct negligence, and that companies should be prepared to be sued in distracted driving accidents as the owner or employer of the vehicle. See, “Cell Phones: Distracted Driving & Employer Liability,” published by FleetFinancials.com in September 2012.
Employers are well aware that if their employee is distracted while driving and causes an accident, then the company may be held liable if the distracted is work-related.
Company Policy for Employee Distracted Driving While On the Job
There is no law that requires employers to create and implement company policies on how employees are to use their cellphones while on the job, particularly while driving, much less otherwise avoid driving distractions. Companies that adopt safe-driving polices for their workers do so voluntarily.
Of course, safe driving policies may be urged by their insurance carriers. The carrier may even suggest language to use in the employee manual for limiting an employee’s distracted driving. Their reason for doing so is not for safety concerns, of course.
Insurance companies want their policyholders to adopt safe-driving policies because the carrier (and its hired defense lawyer) will try and argue that the written policy alone acts to limit or block the employer’s liability in the event of a fatal crash or serious accident.
At EndDD.org, a safety group dedicated to end distracted driving accidents in the United States, the following suggestions are made for company policies regarding employees behind the wheel:
- Make a public commitment to safe driving.
- Consider publishing a press release and writing an article to promote others to do the same.
- Encourage employees to talk to their families about safe driving.
EndDD.org also provides a sample cell phone policy for businesses to use in writing their own corporate policies on safe driving policies for employees.
Employers Can Be Held Liable in Distracted Driving Accidents
Under the state laws of Indiana and Illinois, after a serious or fatal motor vehicle accident involving an employee who is on the job at the time of the crash, the employer may share liability for the crash.
The employer can be held liable under legal theories including respondeat superior, negligent entrustment, negligent hiring or supervision, or vicarious liability. Here, the employer is legally responsible for the accident even if the employee was driving his own car or if he was using his personal phone.
The key is whether or not the distracted driver was distracted by work or a work-related matter at the time of the crash.
For most companies that decide to adopt a formal policy regarding distracted driving, they may be complacent that they have done enough to keep their bank accounts safe from an injury claim or accident lawsuit should their employee be involved in a serious accident.
However, the reality is that in the investigation of the accident, if their employee is found to have been distracted by work while driving and as a result caused the crash, then there is a lack of enforcement or oversight of that policy.
If the company drafts a document but continues to condone its workers using their phones while driving, then that policy cannot be a shield against the employer’s responsibility for that fatal crash.
The reality is employers are not doing enough to stop distracted driving in this country. Their corporate policies or safety manuals are not enough. To suggest this is true is to fly in the face of surveys showing 54% of employees between the ages of 18 and 44 years are answering or making work-related phone calls while driving their vehicles.
Injury Claims after a Work-Related Distracted Driving Crash
Today, if an employee was driving distracted by work and causes a serious or fatal accident here in Indiana or Illinois, then his or her employer may share responsibility for that crash with the driver.
The employer may try and hide behind that company policy as a defense, but the facts are likely to demonstrate a lack of action on the part of the employer to truly stop workers from working on their phones while behind the wheel. Companies can be held responsible for their employee’s distracted driving accident.
Investigations can show that the company failed to train employees on the dangers of distracted driving, for example. There can be failures to oversee company policies against distracted drivers (bosses are all too often calling workers while the employee is behind the wheel). Finally, there are new and developing technologies that can disable phones when the car is being driven (particularly important for truck drivers and commercial bus drivers, for instance).
Distracted driving is a serious danger to everyone behind the wheel on the roads of Indiana and Illinois. Let’s be careful out there!
