Driving under influence — of a cellphone (Legal view)

Employers can be held liable for employees’ mobile accidents

The explosion in the use of cellphones has allowed people to do business faster and from anywhere around the world. It has also helped build the expectation employees should fill every hour with productive work. This includes time in the car driving, perhaps even text messaging or typing on a BlackBerry.

These are dangerous practices for drivers, pedestrians and, potentially, for employers. As a result, some Canadian provinces and regions in the United States have instituted (or are considering) laws to ban hand-held cellphone use while driving.

However, hands-free cellphone use might not be any better. A study published in the British Medical Journal found drivers talking on a cellphone are four times more likely to be involved in a serious crash. Surprisingly, this was the case whether the driver was using a hand-held or hands-free phone.

In another study, Utah psychologists concluded that using a hands-free cellphone while driving could impair drivers as much as having a blood-alcohol level of 0.08 per cent, the maximum legal limit in Canada. Motorists using cellphones in the Utah study were slower to brake, varied their following distance and were more likely to crash. Three participants even rear-ended the simulated pace car.

The kinds of conversations drivers have can impair them in different ways as well. A short discussion about picking up milk on the way home is unlikely to cause much distraction. A heated debate with a co-worker or client, however, can throw off one’s concentration well after the call has ended.

U.S. cases and consequences

Most employers know they can be liable if an employee gets in a car accident after drinking alcohol at a staff event. Many aren’t aware, however, they can also be held liable if an employee gets in an accident while driving and using a cellphone on the job.

There aren’t any Canadian cases on this issue — yet. There have been several American cases, however, that should cause employers to review company policies to limit liability. These include:

• in 2001, a Miami jury found a lumber company liable for more than $20 million US in damages after one of its employees struck another car while making a sales call on his cellphone;

• also in 2001, the State of Hawaii was ordered to pay $1.5 million US in damages after a state teacher who had just completed a call on her cellphone struck a pedestrian while driving to work; and

• in 2004, an employer agreed to pay $5 million US to settle a civil action involving a car crash where its employee was using his cellphone for business while driving;

In another tragic case in 2004, a Virginia court awarded $2 million US to the family of a 15-year-old who was struck and killed by a 33-year-old lawyer driving on a county road. The lawyer was on the phone at the time. After hitting the teen, she fled the scene, thinking she had struck a deer.

In some of these cases, the employer provided the cellphone to the employee. In others, the employer encouraged (or at least condoned) the use of a cellphone for business purposes. They knew or ought to have known workers would be using it while driving.

Employers and drivers should also remember there is a record of calls made — a monthly bill reveals the details. This information can be very useful to police in placing negligent drivers at the scene of a crime.

What employers should do

These court decisions have pushed many employers to act. Some, such as engineering services company AMEC at all of its North and South American locations, have instituted policies prohibiting employees from using cellphones while driving on company time, ranging from a complete ban to cautious use. Others are providing training to workers — such as the Halifax Regional Municipality’s 90-minute sessions educating employees on the dangers of cellphone use while driving — or reviewing company policy. Policies don’t eliminate liability for employers, but can certainly help.

No employer would knowingly permit an employee to drive with a blood alcohol level of 0.08 per cent. So why let someone drive who’s under the influence of a cellphone? Based on recent scientific studies and court decisions, the only safe approach for an employer is to have employees keep their eyes on the road and the cellphone turned off.

Russel Zinn is a senior partner in the employment and labour group at Ogilvy Renault in Ottawa. He can be reached at (613) 780-8672 or [email protected].

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