RISK MANAGEMENT
51
JULY 2013
ACT
program that deactivates the ability to
manually enter information when the
car is in motion. However, opponents say
this will easily backfire into drivers using
their personal smartphones instead of the
vehicles built in system.
Minimizing exposure
To minimize your company’s exposure,
it is important to understand how you
may be liable for an employee’s accident
caused by distracted driving. Under
the legal theory of vicarious liability,
or respondeat superior, an employer
is liable for the negligent actions of its
employees, if the employee was acting
with the scope and course of employment
at the time of the accident. What does
this mean? Unfortunately, it has had
broad interpretation in case law. Scope
and course of employment has been held
to include driving after normal business
hours when the employee was in a
company vehicle, sightseeing on business
trips, calling an employer outside of
driving
business hours, and many other examples.
Because distracted driving claims are
easy to allege by obtaining mobile device
records, and hard to disprove because
the precise time of an accident is often
unknown, this opens up significant
liability. If your employee caused the
accident, it is likely the plaintiff will come
after your company under a theory of
vicarious liability, as you have deeper
pockets than your employees. The
plaintiff is often able to increase the award
by making a claim for punitive damages
and showing that your employees have
a history of distraction-related behavior,
multiple accidents, an unenforced or non-
existent company safety policy, or other
evidence that might establish willful and
wanton disregard for the safety of others.
So what should you do? You must
understand, as an employer that you
have a duty to exercise reasonable care to
control the activities of your employees
when they are acting on your behalf and/
or are using your company vehicles. Even
if the employee is “off duty,” they are
acting under the scope of employment
if they are in your company vehicle, and
your company can be held liable. To
that end, it is imperative that you have
a mobile device safety program and
that you use it. Know the laws in the
states your company does business, and
develop a policy that fits. ANSI standard
Z15.1 “Safe Practices for Motor Vehicle
Operations” contains a template safety
program that applies to all licensed
motor vehicles. This standard requires a
written safety policy that makes all drivers
obey local, state and federal laws and
regulations regarding distracted driving.
By not having a policy, you are setting
up easy evidence of negligence that a
standard of care has been established, and
your company decided not to follow it.
After tailoring a policy to your company,
training employees and drivers, and
enforcing the policy is crucial. The policy
has to be more than a written document,
employees must understand and comply
with it, and repercussions should occur
for those who do not. An unenforced
policy can be more detrimental than not
having a policy at all.
■
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