States cracking down on driver use of cell phones
By Diane Cadrain
State legislatures are starting to put the brakes on people who use cell phones while driving. New Jersey has just become the third major jurisdiction in the nation, after New York and the District of Columbia, to pass a law barring the driver of a moving vehicle from talking on a handheld cell phone.
The dangers of workers becoming distracted by conversations are especially disturbing for employers because companies that issue cell phones to their employees risk liability for injuries caused by those who drive while doing business.
Heres a look at the laws on the books and proposed, the potential for personal injury liability, and the implications for company policies on cell phone use.
The New Jersey law, which will take effect in July, bars the use of handheld phones by drivers of moving vehicles except in emergencies. Its punishable by fines ranging from $100 to $250. Lawmakers made it a secondary action, though: Police may ticket for cell phone use only in conjunction with stopping a driver for another offense. The law pre-empts a patchwork of local ordinances in Bloomfield, Carteret, Hazlet, Irvington, Marlboro, Nutley and Paramus.
The D.C. City Council this year barred the use of handheld electronic devices while operating a motor vehicle. If signed by Mayor Anthony Williams and approved by Congress, the bill will take effect in July.
New York state enacted the nations first statewide ban on driving while talking on a handheld cell phone, effective Dec. 1, 2001. The law is punishable by a $100 fine, and, like the New Jersey law, it pre-empts local laws and allows the use of hands-free devices.
A legislative explosion
Ten years ago, this wasnt even an issue, said Matt Sundeen, who monitors transportation issues for the Denver-based National Conference of State Legislatures (NCSL). But since 1999, he said, legislation on the issue has been introduced in every state. Last year alone, 42 states considered bills, and this year proposals are already on the table in at least 10 states.
Its a legislative explosion, said Sundeen, who has done extensive research on cell phones and highway safety.
But the fines under state and local laws are minor compared to the potential liability of hitting someone while talking on a company cell phone.
In Virginia, for example, law firm Cooley Godward is fighting a multimillion-dollar lawsuit brought by the family of a 15-year-old girl who was struck and killed by one of the firms lawyers who, allegedly, was making business calls at the time.
Sundeen pointed out several other examples:
Arkansas. Dykes Industries paid a $16.2 million settlement after a 78-year-old woman was struck and disabled by a Dykes salesman who was making a sales call.
Hawaii. The state paid $1.5 million to a man who was hit by a state-employed teacher who had just finished using her cell phone on the way to work.
Pennsylvania. Investment firm Smith Barney paid a $500,000 settlement to the family of a motorcyclist who was hit by a broker on a sales call.
Employers are generally liable for the negligence of employees who are traveling for work, attorneys say. If a cell phone was involved, the employer could try to show that use of the phone didnt cause the accident or that the employee was deviating from the jobfor example, by making a purely personal call.
The existence of a state law barring drivers from talking on cell phones in moving cars can actually strengthen plaintiffs arguments, said one attorney. If its illegal to use a handheld phone while driving, the fact that a driver causes an accident while using one would be negligence per se, or obvious negligence, the kind you dont need an expert to prove, said Vincent Cino, a partner with the Morristown, N.J., office of law firm Jackson, Lewis LLP.
Violation of a statute is often negligence per se. Its like going through a red light, explained Cino. The only defense would be an emergency.
