Cell Phones + Driving = Wrong Number

A recent cell-phone commercial poked fun at how out dated a landline phone is nowadays. People increasingly are relying on their cell phones for both business and personal communication and feel the need to use them wherever and whenever throughout the day—especially while in the car. For building service contractors who like to stay connected to all company proceedings, this constant chatting could mean trouble if something were to go wrong.

According to a 1997 study in the New England Journal of Medicine, drivers using a cell phone are four times more likely than drivers not on the phone, to be in an accident during the time of a call, nearly the same risk as driving drunk. And, if an accident occurs while on company time, or if the call is work related, the employer may be held liable.
“Right now it’s still a gray area,” says Myles H. Alderman, Jr., partner for Alderman & Alderman, Counselors at Law in Hartford, Conn. “But if an employer has an employee use a cell phone for part of their job, there is potential liability.”

For instance, in Florida, Lazaro Leiva, a salesman for lumber wholesaler Dyke Industries, was talking on his cell phone while driving to a sales appointment when he crashed into the car of an elderly woman. Her injuries were so severe that Dyke Industries was sued for $21 million and later settled for $16.2 million.

Two years ago in Virginia, Jane Wagner, a lawyer for Cooley Godward was coming from a client meeting at 10 p.m. and talking on her cell phone when she hit and killed a 15-year-old girl. Even though the accident happened well outside of business hours, the deceased’s family claim the lawyer was conducting a business related call when she hit their daughter and is suing both the lawyer and the law firm for $30 million.

The list is growing. Employers put pressure on their employees to maximize business, even while behind the wheel. BSCs might have their salespeople use the drive time to make cold calls and try to land new accounts, or their operations managers might be in their cars, addressing customer complaints or contacting cleaning crews via cell phone.

If an employee is involved in a cell-phone-related accident, there is a good chance that case will be taken to court. According to Robert Braun, consultant for Braun Consulting Group in Seattle, Wash., it is very tempting for a person who only makes $35,000 a year to try to win $4 million.

“Many Americans believe that litigation is a contact sport,” says Braun. “And they will litigate even with a 40 percent chance of winning.”

Employers will have to spend valuable time and money fixing the situation. Even if the employer wins the case, it still could cost them thousands of dollars in court fees, says Alderman.

Reducing the risk
Steps already have been taken to help curb the problem of reckless driving while talking on the phone. Countries such as Australia, Great Britain and Spain have cell-phone bans and regulations while driving. In the United States, New York is the only state so far to ban hand-held cell phones while driving, but the law does allow for hands-free devices. Other American cities ranging from Miami, Fla., to Brooklyn, Ohio have their own rules and regulations regarding cell-phone usage. All cities, though, will allow cell phones to be used in emergency cases.

But most places don’t have limits to cell-phone use while driving. If a company wants employees to talk to clients while driving, then that company needs to decide how to approach the situation.

“Have a clear policy of what is appropriate use of equipment during employment,” says Braun. “Analyze what is the need for the equipment for the business and how does the employer expect it to be utilized.”

If contractors do not require employees to call clients outside of the office, then prohibiting cell phones while driving would be the safest policy to enact. If cell phones are needed, use hands-free accessories and make sure all employees are equipped with the necessary devices. Another option is to simply pull over to the side of the road when making or receiving a call.

New studies show that talking on a hands-free cell phone still can impair driving, but it is not illegal to talk and drive as long as two hands are on the wheel during the call. If a salesperson, operations manager or executive must make calls while in a vehicle, using a headset or a phone mount could prevent an accident or a lawsuit.