September 2004 - Accident Reconstruction Newsletter

CELL PHONE – VICARIOUS LIABILITY ISSUES
CAN YOU HEAR ME NOW?

By: Steve Kuzmich JD
J.W. Jack Murray CLI,CFE,CCDI

It is estimated that over 95 million American use cell phones in the course of their daily transactions. As a result, a lot of these folks are involved in motor vehicle accidents. According to Harvard University’s Center for Risk Analysis, it’s estimated that last year over 1.5 million were involved in accidents, with 2,600 of them being fatalities and 330,000 with reportable injuries.

The question then becomes, are cell phones dangerous? You bet!
The National Highway Safety Administration estimates that 25% of all motor vehicle accidents are distraction related. A study by the University of Indiana of “pre crash factors involved in traffic accidents” identified driver inattention as “the leading cause of automobile accidents.”

There are basically four kinds of driver distractions. First is visual. Looking away from the roadway would be an example of this. Next time your at a traffic light look at the people on either side of you, if they’re on a cell phone notice how they tilt their head to one side and tend to look down instead of straight ahead.

Second is biomechanical. This would include manipulating a control, such as dialing the phone or adjusting a radio or cd player; this can often be associated with visual distraction, a deadly combination.

The third is auditory, such as being startled by a ringing telephone, or one that plays the Stars and Stripes Forever, The fourth is cognitive, including fatigue and aggression (road rage) and mental distraction. Being “lost in thought” or focused on a conversation with someone causes us to withdraw from situational responses.

How then is talking on the telephone different than carrying on a conversation with a passenger in the car? There are two basic differences. The first is that a passenger in the vehicle is aware of the driving situation and can serve as an additional look out for hazards. If there is a needed pause in conversation, the reasons are obvious.

The second is that phone use seems to carry a certain obligation of immediacy. When the phone rings, we feel compelled to answer it, or at least look down at the caller ID to see who it is calling – whether it is convenient, safe, or appropriate to do so. We become more focused on the phone call than on the situational awareness so necessary for safe driving.

How do we know that cell phones contribute to motor vehicle accidents?
The prestigious New England Journal of Medicine (Vol. 336,Number 7, February 13, 1997) carried a study performed by researchers at the University of Toronto, Department
of Medicine, that concluded, “The use of cellular telephones in motor vehicles is associated with the quadrupling of the risk of a collision during the brief period of a call."

A study by the Clinical Psychology Department of the University of Utah, in 2003, “Why Do Cell Phone Conversations Interfere With Driving?” showed that it’s the conversation, not the act of holding the phone, that’s responsible for the distraction. Therefore simply requiring people to have a hands free phone if they want to drive and talk, as some legislative proposals do, won’t improve safety at all. The research involved 110 college students using driving simulators, it was published in the March 2003 issue of the Journal of Experimental Psychology: Applied.

North Carolina is the only state that routinely captures the narrative description portion of the accident report on a computerized crash database. The Highway Safety Research Center at the University of North Carolina, Chapel Hill, prepared a study for the AAA Foundation for Traffic Safety; entitled “The Role of Driver Distraction in Traffic Crashes.” They concluded that the major factor in motor vehicle accident causation was driver distraction.

A November 2002 study by the California Highway Patrol “Report to The Governor and Legislature,” found that of the collisions caused by inattention between January 1 and June 30, 2992, the largest number of accidents were attributed to cell phone use (11%), followed by radio/CD (9%) children (4%) eating (3%) and reading (2%). California law already restricts a teenagers ability to drive at night and to have other, kids in the car with them because research shows that they’re not as capable of driving with distractions as older drivers. For teens, driving is a whole new multi-tasking experience that requires extreme concentration, which is why taking cell phones out of the equation makes sense. Both the Advocates for Highway and Auto Safety and Consumers for Auto Reliability support this proposition.

Virginia Commonwealth University Center for Public Safety, Crash Investigation Team, noted that the cognitive resources required to carry on a telephone conversation are the same as those required to drive. Thus, when the two tasks are performed simultaneously, a cognitive load is placed on the driver, which may impact on performance of either or both activities. These studies repeatedly show that such behavior reduces awareness and driver reaction times, especially as they relate to braking. Thus the drivers reduced ability to assess and respond to unexpected situations increases risk. Crash risk is reported to increase from 34% to 400 % compared to drivers not using mobile phones, depending on the study. One researcher compares this increase in risk to be similar to the risk associated with a blood alcohol level at the legal limit. Another researched concluded that using cell phones and other electronic devices while driving is two to five times more dangerous than changing radio stations or eating.

Problems in documenting contributions of cell phones to accidents.
Fran Bents, co author of the Department of Transportations 1997 report entitled “An Investigation of the Safety Implications of Wireless Communications in Vehicles,” Said, “There are no good statistics on the number of deaths and injuries which can be attributed to cell phone using drivers.” According to Bents, “the reason for this is that most highway safety data is based, at least in part, on police reports, and there is no incentive for a police officer to note cell phone use in his report.”

Is this problem unique to the United States?
In the United Kingdom, the Royal Society for the Prevention of Accidents and the Health and Safety Unit of Aston University in Birmingham, England, conducted a study of driving activities on a driving simulator, which provided realistic driving situations, including “intelligent” traffic. Drivers were asked to engage in a conversation while driving in both manual and automatic transmission modes.

The researchers found that an automatic or manual transmission made little or no difference in the results. However, there was a significant effect from the use of cell phones to carry on a conversation. During conversations, drivers did not vary their speed according to conditions as they normally would. In other words, they were less responsive to traffic, and they were less responsive after the completion of the call than before.

Many European nations, Australia Japan and others have passed and enforce laws outlawing the use of cell phones while driving.

Are employers liable for damages as a result of accidents where employees are using company phones and/or conducting company business? Normally, if the person is involved in an accident during the scope of their employment there is liability on the part of the employer. But what about those accidents that occur while on the way to work, or after working hours? You are dealing here with the concept of vicarious liability, defined in Blacks Law dictionary as “Indirect legal responsibility. The liability of an employer for the acts of an employee.” The employer may be held liable for an accident by someone if they supply the phone, or if they encourage the driver to use it, whether or not the call is related to business.

A 29 year old technology lawyer on the rise with Cooley, Godward, a San Francisco based law firm drove a silver Mercedes and routinely made calls to clients and billed them for the time she talked with them from her car. On March 28, 2000 during a call placed at 10:36PM she hit and killed a 15-year-old girl, on a busy highway in Fairfax, Virginia. The lawyer served a one-year jail term, on work release, after pleading guilty to leaving the scene of an accident. The deceased girls family then sued both the lawyer and her employer. At the heart of the claim against the employer are the cell phone calls she made when she was working. The suit alleged that the firm was partly responsible for the accident because the attorney’s job involved doing business in lawyers’ parlance – “amassing billable hours by cell phone. Such calls were made, the suit says, were done “with the expectation and acquiescence of Cooley Godward and served as a direct benefit to the law firm”

In other recent cases: Dyke Industries of Arkansas agreed to pay 16.2 million dollars to a 78 year old woman who was severely disabled after one of its salesmen, who was talking on his cell phone while driving to a sales meeting. Collided with the car she was driving.

Smith Barney paid 500,00 to settle a wrongful death lawsuit brought by the family of a deceased motorcyclist who was struck by a car driven by one of its employees. The employee ran a red light while he bent down to pick up a dropped cell phone, hadn’t been using the phone at the time, the employer didn’t own the phone or the car and the employee was on his way to a Saturday night dinner not related to work. The deceased’s family maintained that the employee used the phone for business and the employer agreed. Co-workers said sales calls to potential clients were often made in personal time from personal cell phones. The firm settled rather than risk a jury decision.

The State of Hawaii paid 1.5 million to the family of a New Jersey man who was crossing a highway when he was struck by a car driven by a public school teacher who was on her way to work. The judge found that the teacher had been distracted by using her cell phone within a minute of the accident.

What is the role of the investigator in these cases?
Document, document, document! Check out company policies on cell phones. The best sources of course are company memos and/or policy manuals, but employees and ex employees are rich sources of informal and/or unwritten policies. Check out local court records for names of ex employees involved in other court actions. Find out if supervisory personnel were in the habit of calling employees on their cell phones during the business day, or after hours.

The attorney needs to subpoena the records of the drivers cell phone and then carefully match these with the timing of the accident. This means comparing the times to police logs as to when they received the 911 call, not when police responded to the accident.

Interview the last person the driver talked to. Find out, if you can, what state of mind
he or she was in during that last call, were they upset, running late, angry? All of these can lead to causation factors for accidents after they hang up!

Use the Internet to search out documents from other companies and insurance companies with recommendations for company policies on the use of cell phones by employees.
Cell phones page 5

Many insurance companies have suggested policy plans for employers this on the Internet, check to see if the insurance company involved makes any kind of suggested policies to their insured.

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• Cell Phone – Vicarious Liability Issues
  Can You Hear Me Now?
• Drowsy Driving and Automobile Crashes
• National Survey of Distracted and Drowsy Driving - Attitudes and Behaviors: 2002
• National Survey of Speeding and Unsafe Driving - Attitudes and Behaviors: 2002
• State Distracted Driving Laws Chart
• Examination of the Distraction Effects of Wireless Phone Interfaces Using the National Advanced Driving Simulator - Preliminary Report on a Freeway Pilot Study
• Driver Eye Glance Behavior During Car Following
• Northwestern University Class Schedule

• ARC Network New Members
• October 2004 Training Events
  (Currently 15 events scheduled)
• In The News
• Membership Information

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