Cell Phones: Distracted Driving & Employer Liability
Negligence is never something a fleet manager wants to be accused of. Today, with the preponderance of cell-phone use and technology, one should always be prepared.
We live in a litigious society. According to ZoomSafer, American law schools churn out 45,000 new lawyers every year, all of whom are looking for that big payday or a way to make a name for themselves.
According to Jose Luis Muñoz, labor and employment law attorney for Alaniz and Schraeder, LLP, employee accidents are expensive. Motor vehicle crashes cost businesses almost $60 billion per year. On-the-job highway crashes cost employers more than $25,500 per crash, more than $128,000 per injury, and more than $500,000 per fatality. Truck accidents, specifically, have fueled many lawyers’ careers.
“One key item companies must remember, as the owner or employer of the vehicle, you will be named in the lawsuit 100 percent of the time,” Muñoz noted. “Why is this? Because companies have what lawyers refer to as ‘deep pockets.’ ”
To prevail on a claim, a plaintiff must prove that the other driver was texting while driving, talking on a cell phone, or otherwise acting negligently before the accident. If successful, the plaintiff may be entitled to compensation for medical bills, time spent off work, property damage, and punitive damages.
According to Muñoz, there are two principal legal theories of negligence:
• Respondeat Superior, which states that an employer is responsible for the negligent acts of employees while they are acting in the scope of employment.
• Direct Negligence, which states that an employer is responsible for its own negligence in hiring, supervising, and entrusting a vehicle to an unqualified employee.
What about a company’s insurance policy? According to Muñoz, rule No. 1 of liability insurance policies is to read the policy’s exclusions. Don’t just take the insurance agent’s word for it.
“Many standard commercial general liability policies exclude punitive damages. And, even if covered, punitive damages can often exceed policy limits. Many policies also exclude negligent entrustment coverage,” Muñoz said.
Negligent entrustment occurs when a fleet manager permits a driver to operate a vehicle, the driver is found to be incompetent, the fleet manager or company knew or should have known about the incompetence, and the driver’s negligence caused an accident.
A driver is considered incompetent if any of the following are true:
■ Not qualified to drive a vehicle safely at the time he or she was hired.
■ Disqualified under DOT or any state regulations.
■ History of accidents and traffic violations.
■ Lacked skills for the type of vehicle or driving involved.
■ Engaged in risky behavior, such as cell-phone use while driving.
Whether the driver was operating a company or personal vehicle, and whether he or she was using a personal or company cell phone is immaterial for the purpose of liability. If he or she was acting in the scope of employment, the fleet manager is liable.