The danger of cell phone use while driving has come to the forefront of public awareness, and most provinces have recently reacted with new legislation. Employers should follow suit and limit their exposure to liability by creating policies in line with provincial legislation to ban cell phone use by employees while driving.

The movement to reduce distracted driving has been fuelled in part by high profile support in the United States. Within the past year, President Obama banned federal employees from texting while driving and Oprah Winfrey kept the issue in the media spotlight with her “No Phone Zone” pledge.

Recent research has shown that distractions caused by hands-free devices can be equally as dangerous as handheld ones. In a March 2010 report, the National Safety Council in the U.S. suggests that laws allowing hands-free devices give a false impression they are safe. Research indicates that talking on cell phones, even hands-free, is as dangerous as driving with a blood alcohol count of .08. Texting while driving increases the risk of fatal accidents by 2300%. It estimated that drivers using cell phones in any manner failed to see up to 50 per cent of the information in their driving environment; that is, they may have looked at something, but it did not register. In Canada, the Canadian Automobile Association has lobbied provincial governments to expand bans to hands-free devices.

Behind the policies and campaigns, there have been numerous lawsuits in the U.S. with large awards against employees and their employers.

  • In 1999, an investment broker hit a motorcyclist while using a cell phone for business. His investment firm settled for $500,000 as they faced the prospect of direct liability for permitting and expecting employees to make cold calls while driving.
  • In 2001, a jury awarded $21 million (U.S.) to a passenger of a vehicle that was struck by a salesperson driving while on his phone. The salesperson and his company’s insurance later settled for $16.2 million.
  • The 2004 case of Yoon v. Wagner resulted in a lawyer losing her licence to practice law, an order for her to pay $2 million (U.S.), and her firm settling for an undisclosed amount. Even though the accident occurred at 10:30 pm, her firm was vicariously liable, as the lawyer was making work-related calls at the time of the accident.
  • In 2008, International Paper Company settled for $5.2 million (U.S.) after one of its employees, while using a company cell phone, rear-ended another car.
  • In 2009, a jury awarded $4.1 million to the family of a victim who died after his car was struck by an off-duty police officer. The county was held vicariously liable because the officer was driving a police cruiser.
  • A trucking company in 2009 was found to be vicariously liable in a case where one of its drivers struck another vehicle while checking his cell phone for text messages. A victim who suffered brain damage was awarded $18 million (U.S.).

Similar lawsuits have not been decided in Canada, but it may only be a matter of time, as the same legal principles would be applicable and there will be an expectation that employers will ensure their employees are following the new provincial laws or ensuring that the requirements of work do not create a menace on the road. With the exception of Alberta, New Brunswick and the territories, all provinces have passed legislation outlawing the use of handheld cell phones while driving. The laws are not uniform and carve out exceptions such as allowing for hands-free cell phone use. Distracted driving legislation is currently being considered in Alberta which would prohibit drivers from talking on hand-held cell phones as well as reading, writing, attending to personal hygiene or grooming.

Employers should be concerned about the possibility of being found liable for the harm caused by the negligent acts of an employee. If an employee is using a cell phone for a work-related purpose at the time of an accident, the employer could be held vicariously liable. Employers could also be found directly liable if employees are required or actively encouraged to use a phone for work purposes while driving. This could include scheduling conference calls, returning messages and calling clients while it is known an employee will be driving.

The U.S. cases demonstrate that an employer may be held vicariously liable regardless of whether there is a policy in place, the call is outside normal business hours, or the employee is using his or her own phone or vehicle. Similarly in Canada, while not dealing specifically with cell phone related accidents, courts have interpreted broadly the issue of whether employees are acting within the course of their employment. In Bazley v. Curry, the Supreme Court of Canada adopted a policy-based approach to determining liability. The effect is that while an employee may commit an unauthorized or illegal act, an employer can still be found vicariously liable in order to provide a just and practical remedy and to deter future harm.

There is no complete shield to liability, but employers should reduce their risk by establishing safe-driving policies. At a minimum, policies should reflect the provincial laws and prohibit handheld cell phone use while driving. Depending on the amount of risk the company is willing to take, policies can range from prohibiting the use of any communication devices while driving to allowing only hands-free cell phone usage. Policies should also consider encouraging limiting the use of other electronic devices while driving such as GPSs, smartphones and MP3 players.

Employers should also turn their minds to other provincial regulatory schemes dealing with workers’ safety. In Ontario, the Occupational Health and Safety Act places duties on employers to take all reasonable precautions to protect the health and safety of workers. There is also a specific duty to develop and implement a health and safety program and policy, which could be an ideal place to detail a cell phone usage policy. Workers’ compensation may also be triggered if the employees conduct business in their vehicles or are found to be moving between worksites.

Overall, employers should take the time to become familiar with new provincial laws regarding cell phone use on the road, the available research on the risk of using cell phones while driving and develop a clear policy to address distracted driving.