DISTRACTED DRIVING IS A GROWING CONCERN
In Ontario, distracted driving has become an increasing cause for concern. In 2013, Ontario Provincial Police (OPP) reported that distracted driving fatalities surpassed the number of impaired and speed-related road deaths in Ontario (1). Distracted drivers are fours times more likely to crash than a driver focusing on the road (2). For this reason, OSG encourages you to put down the phone, and pay attention to the road.
Have you asked yourself if your business is worth the cost of distracted driving? As an employer, you are liable for an employee who injures him or herself or injures another, while driving distracted. The cost of such an incident could bankrupt your business and cost thousands or millions in legal fees and fines.
WHAT CONSTITUTES DISTRACTED DRIVING?
Sometimes, people do not understand what exactly constitutes distracted driving. Using your phone to talk or text, read a map, or to choose or switch a song (3) is distracted driving. The easiest way to avoid distracted driving is to not use any devices while behind the wheel; however, some exceptions are hands-free devices, or a mounted device, like a GPS (Global Positioning System). Reading, applying makeup, and using other electronic devices, such as portable DVD players, are also considered to be distracting to drivers. So far, eating, smoking, and changing the radio station have not been specifically defined as distracted driving.
EMPLOYERS ARE LIABLE FOR EMPLOYEES WHO DRIVE DISTRACTED
According to the Canadian Criminal Code, anyone who has the authority to direct how another person works has a legal duty to prevent bodily harm to that person that arises from the work (4). Therefore, employers may face liability if an employee is injured or injures another while driving and using a hand-held device if it can be proven that the employer did not take reasonable precautions to prevent such accidents.
Bazley v. Curry – A Canadian Precedent
In the leading case on employer liability for employee conduct (Bazley v. Curry), it was determined that employers are “ vicariously liable for (a) acts of employees that are authorized by the employer and (b) unauthorized acts that are related to conduct authorized by the employer.” (5)
THE US IS LEADING THE WAY
A growing number of US employers have been found liable for employees who drive distracted:
An American truck driver who was checking his phone messages caused a ten-car pile up and killed three people. The employer was found liable, and the accident cost the company 24.7 million dollars.
An employee on his way to work crashed and was injured. Although the employee was not in a work vehicle or on work time, the employer was found liable for the accident because the employee was on the phone with his employer at the time of the accident, dealing with a work-related issue. The accident cost the employer one million dollars in damages (6).
An employee driving a company car while chatting with her husband on the phone hit another car, forcing it into oncoming traffic, where it was struck head-on. The driver of the other vehicle was killed. The employer was found liable, and the accident cost the company 21.6 million dollars.
The common thread is that employers are more consistently being held accountable for employees who injure themselves or others while driving distracted. Although the examples are American, Canadian courts are following suit. In Ontario, the case of Walker v. Ritchie resulted in an employer paying over one million dollars in damages after an employee who was found to be driving distracted caused an accident that resulted in catastrophic injuries to a 17-year-old girl. As the Canadian justice system and government start to take aim at distracted driving, the numbers of employers being fined for employee conduct behind the wheel will no doubt increase.
HOW CAN YOU PROTECT YOURSELF?
The best way to protect yourself against distracted driving lawsuits on behalf of your employees is to ensure that you have a zero-tolerance policy in place that bans distracted driving in work vehicles or in personal vehicles being operated for work purposes. In the event of an accident, an employer needs to be able to prove due diligence. This can be done by developing a policy that explicitly states the expectations of the employer with regard to hand-held devices and driving. Have all employees sign off on the policy.
Sometimes, employers inadvertently create the expectation that distracted driving is okay, by having policies that require that all emails must be answered in a timely manner, or that all phone calls from the office be answered. Be sure that you don’t have any policies currently in place that may create a situation where an employee feels he or she must drive distracted.
HOW CAN YOU PROTECT YOUR WORKERS?
- Direct staff to never accept or make calls while driving, unless hands-free capability is activated
- Ensure staff understand that there will be zero tolerance for reading or sending texts or emails while driving
- Have staff change voice mail notifications to indicate that they are driving, and will return calls when they are safely parked
- Emphasize that distracted driving is illegal
- Ensure hands-free capability where appropriate
- Follow up with disciplinary action where appropriate
- Direct staff that if a call must be taken or a text sent, that they absolutely must pull over safely before doing so
- A fine
- Demerit points
- Higher insurance costs
- Loss of license
- A personal lawsuit
- A business lawsuit
- A bad driving abstract
- The cost of the damage to work properly
- The cost of replacing a personal vehicle
- Your LIFE
- The LIFE of another
Written by Jennifer Miller | Curriculum Development Coordinator
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