Juries make firms pay if workers on phone cause wrecks

  • Article by: ASHLEY HALSEY III , Washington Post
  • Updated: May 27, 2012 - 9:56 PM
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Lieutenant D.J. Graham of the State Patrol pulled over a driver in Eagan for texting on his cellphone earlier this spring.

Photo: Jerry Holt, Star Tribune

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One was a lumber salesman who crippled a 78-year-old woman. Another was driving a toy company's van when he killed a college sophomore. When a cable company guy rammed a stopped car at 71 miles per hour, a woman and her mother died. A driver in a company car didn't react when traffic slowed, rear-ending a Honda in a chain-reaction crash that killed a 32-year-old woman.

All four drivers were using their cellphones. At a time when the National Safety Council estimates that about one-quarter of all crashes involve cellphones or texting -- about 1.2 million accidents a year -- these four crashes had something else in common.

The companies that employed those drivers were sued. Distracted-driving lawsuits now are part of the legal landscape, and the lawyers who bring them are increasingly going after the deep pockets of corporations that let their employees talk or text while behind the wheel.

Juries are making it worth their while: One awarded $21.6 million to the Florida family of the Honda driver. And a federal magistrate ordered an Alabama trucking company to pay $18 million for an accident that happened when one of its drivers reached for a cellphone.

Many corporations are anxious to settle once they discover they are facing lawyers armed with the smoking gun of cellphone records.

The Arkansas lumber company whose salesman crippled the 78-year-old woman paid a $16.1 million settlement. And International Paper settled for $5.2 million after an employee on a cellphone caused a collision that cost a woman her arm.

'That's not true'

Todd Clements, a Texas lawyer who sued the cable company for the accident that killed two women, thinks companies are wise to settle without a jury trial. "People think there's a good defense here by saying, 'Everybody does it,'" Clements said. "Well, that's not true, because the jury doesn't want everyone to do it. They just want to do it themselves. It's a huge disconnect."

Given the opportunity to play the scold, jurors are eager, Clement said, to punish corporations in what amounts to a primal act of self-preservation: By awarding huge amounts of money to plaintiffs, they encourage corporate bans on calling and texting.

David Teater, a transportation director at the National Safety Council, recently explored corporate liability in cases involving texting and cellphone use.

"There was a recent poll in California where fear of cellphone driving outranked drunk driving for the first time," said Teater, whose 12-year-old son was killed by a 20-year-old woman who drove her Hummer through a red light while using a cellphone.

Teater links corporate liability to research that shows drivers using cellphones are four times as likely to be involved in a crash.

"If an employer knew a behavior in some other aspect of the business put employees at four-times-greater risk of injury, would they still expect or even encourage that behavior?" he said. "It's a huge trend. It's a real liability for companies, a real risk."

Whether it's a company car, a company-issued phone or just an employee making a business call in a private car on a private phone, the corporation is within the reach of a distracted-driving lawyer.

"Cellphone use in a catastrophic case is going to be gasoline on the fire," said Clements. "You've just ratcheted up your exposure and the essential value of the case exponentially."

A positive response

Many Fortune 500 companies have moved to ban all employee cellphone use while driving. UPS, DuPont, Chevron, CSX, Shell and Time Warner are among them.

When companies with bans were surveyed by the National Safety Council two years ago, 7 percent said productivity had declined after the ban but 19 percent said it had increased.

"There was absolutely concern about that," said Doug Pontsler, vice president for safety at Owens Corning. "But our position is, quite simply, that we don't make safety decisions based on productivity."

After discouraging phone use by drivers for years, Owens Corning implemented a complete ban April 1.

"We found the customer response to be really positive to this," Pontsler said. "Our people have been very open with our customers about the fact that 'Hey, I may not be able to answer the call immediately.'"

Pontsler and distracted-driving experts agree that the recommendation of a total ban by the National Transportation Safety Board in December was a tipping point for many companies.

Educating the workforce is critical if any policy is going to stand against a later lawsuit, said David Strayer, a University of Utah professor who is a leading researcher on distracted-driving issues.

"It can't be a wink-wink, nod-nod policy, but in fact one where you really are expected not to use the phone," Strayer said.

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