Saturday, July 04, 2020

By Patrick O'Brien and Jeni Turner

Smartphones are an important and addictive staple of everyday life that allow us to have real-time communication across the globe with family, friends, and clients. The dark side of our romance with smartphone technology is the perception that we have a newfound ability—and need—to multitask at all times, even on the roadways. Studies show that it takes approximately five seconds for a driver to send or receive a text message, and those are valuable seconds focused on screens instead of on the road. On a highway, those five seconds can be enough for the vehicle to travel the equivalent length of a football field. Distracted driving continues to be responsible for the upward trend in traffic collisions and fatalities. Because injured plaintiffs have been very successful in bringing lawsuits against distracted drivers and their employers, we recommend a proactive approach to shield your business from liability.

As awareness of the danger of texting and driving grows, 48 states have responded with bans. California has even more restrictive laws, prohibiting a driver from holding or operating any type of wireless device while driving. Traffic safety experts have identified three types of driving distractions: manual, visual, and cognitive. Texting and driving involves all three: In order to send a text message you have to remove your hands from the steering wheel to type, take your eyes of the road to look at the phone, and focus your mental energy on the content of the conversation you’re having
“Studies show that it takes approximately five seconds for a driver to send or receive a text message.
On a highway, those five seconds can be enough for the vehicle to travel the equilavent length of a football field.”
Liability against a texting driver is based on negligence law and violations of the vehicle code. But employers face a greater risk of exposure since liability can be based on negligence, improper training, and inadequate (or non-existent) cellphone policies. Texting and driving can also give rise to punitive damages, making lawsuits more expensive.

A comprehensive safe driving policy is the first step that employers should implement in order to reduce their liability exposure. While texting is one of the most frequent distractions, smartphones aren’t the only source. A solid policy should prohibit not only texting and driving, but also driving while using any type of hand-held device in order to comply with local laws. This includes using GPS features, audio, e-mail, social media apps, and any other technology that requires concentration. Fortunately, most cellphone service providers offer applications and programming options that can reduce distracted driving by turning off notifications. Consider requiring employees to enable Apple’s “Do Not Disturb” feature on iPhones. AT&T offers DriveMode, Verizon has Safely Go, and Sprint offers Drive First. It would be a smart move to consult a local attorney to ensure that your safe driving policy complies with all applicable laws in your state.

After adopting a rock-solid safe driving policy that prohibits texting and driving, it’s time to provide training for your employees. Failure to adequately train employees on the safe driving policy can make employers liable for independent negligence claims and punitive damages. Most people already know that it’s dangerous to text and drive, so effective training will focus on changing habits and reinforcing the long-term consequences of handling devices while driving. Also consider having your chauffeurs sign a pledge to resist the temptation of texting and driving. Provide training annually, post reminders in the workplace, and send your employees home with resources and information about your safe driving policy.

Now that you’ve got a great safe driving policy in place and you’ve provided your drivers with training and resources, your business should be safe, right? Wrong! Business owners must enforce their safe driving policies with real consequences. If an employer is aware that an employee chauffeur has a history of inattentiveness and cellphone use while driving, the employer can be liable for punitive damages. Punitive damages are reserved for conduct that is legally deemed outrageous, the result of an evil motive or reckless indifference to the rights and safety of others. As the name suggests, punitive damages are designed to punish a wrong-doer and send a message to deter others from similar conduct—and they can cost millions of dollars, especially if an accident involves a fatality. If you know that an employee chauffeur uses a cellphone while driving, it’s time to act before they cause a major collision.

The law demands that driving teams and employers take distracted driving seriously. This is simply not an issue that the luxury ground transportation industry can afford to ignore, considering the safety statistics available as well as the landscape of litigation. The best way to protect your business from liability is to have clear and comprehensive policies prohibiting the use of cellphones while driving, providing adequate training for your employees on the policy, and then enforce it consistently. This approach is even more important if you provide your employees with a work phone to use on the job. A qualified attorney in your area can help identify the state-specific driving laws that you need to be aware of and help to develop a policy and training program to protect your business.  [CD0619]

Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.

Patrick O’Brien is a managing partner of the law firm O’Brien & Associates and was the founder of Panama Luxury Limousine in Panama City, Panama. He can be reached at patrick@pobrienlaw.com. Jeni Turner is an attorney at O’Brien & Associates. She can be reached at jturner@pobrienlaw.com.