Employers Should Be Liable For Punitive Damages When Employees Cause Serious Injury While Driving, Texting, Talking

By referring to distracted driving as a "deadly epidemic" on Wednesday, U.S. Transportation secretary Ray LaHood was hardly being controversial. Every year 1.2 million traffic crashes involve drivers not paying attention, according to the National Highway Safety Administration. Not surprisingly drivers' use of cell phones and computers for talking, texting and emailing is often the cause of such inattention. Drivers from virtually all walks of life are undoubtedly guilty of engaging in this dangerous behavior. A lengthy article in today's New York Times focuses on the extent to which employees attending to work related matters while driving, whether checking email, following up with a client or checking in with a dispatcher, contribute to this problem. The article provides some chilling accounts of the repercussions of doing so. On a positive note, however, it states that some large companies are starting to recognize the danger posed by their multitasking, distracted employees while on the road. In response, some are banning employees from using phones and computers while driving. The fear of litigation arising from injury or death caused by a distracted employee on a cell phone is a motivating factor behind such self-imposed bans.

Our state, and some cities and municipalities in Illinois, is keen to the dangers posed by distracted driving. Recently, Illinois imposed a ban on texting while driving. The City of Chicago presently requires cell phone users to use a hands free device while operating a vehicle. These laws, while welcome, are difficult to enforce. Also, the pressure that many employees, both white collar and blue, feel to respond to work emails, phone calls and text messages while on the road may be far more compelling than the remote risk of being ticketed for doing so. One way to compel employers to institute cell phone bans is to put them on notice that a failure to institute such a policy could hit them hard where it hurts, in the purse. We have reached a point where the dangers of driving while using a cell phone are so thoroughly documented and well understood that use of a cell phone while driving should support a cause of action for willful and wanton misconduct . An employee who causes an accident due to inattention from cell phone use that results in serious injury or death should result in the employer being held liable to pay very substantial punitive damages to the victim or the victim's family. In my opinion, existing Illinois law supports this proposition.

Negligent conduct is different from that which rises to the level of being "willful and wanton". Negligence is a failure to act as a reasonable person would under similar circumstances. A victim harmed by conduct that is "merely" negligent may not collect punitive damages from a defendant. On the other hand, conduct is willful and wanton where it "shows an utter indifference to or conscious disregard for the safety of others." I.P.I. 14.01. "A defendant is willful and wanton when he has actual or constructive knowledge that his acts, or his failure to act, create a high probability that others will incur serious physical harm, and the defendant nevertheless recklessly disregards this danger." McDermott v. Metropolitan Sanitary District, 240 Ill.App.3d 1, 28, 607 N.E.2d 1271 (1st Dist. 1992). It is well established in Illinois that an employer may be held liable for both the negligent and willful and wanton conduct of its employee where the employee was acting within the course and scope of his employment. "A willful and wanton cause of action based on a respondeat superior theory is similar to a negligence action, except that the level of the defendant's conduct is more than mere negligence, but less than intentional conduct. The allegations of a willful and wanton claim must set forth facts to establish that the employee, within the scope of his employment, acted with willful and wanton disregard, or conscious indifference towards" the injured person. Ledesma v. Cannonball, Inc., 182 Ill.app.3d 718, 726, 538 N.E.2d 655 (1st Dist. 1989). In plain language, where an employee is held to have acted recklessly, his employer is automatically held to have done so as well, so long as the employee was undertaking his ordinary duties and responsibilities in furtherance of his employer's business at the time. "Such a claim may . . . give rise to punitive damages." Id.

To the best of my knowledge, no Illinois court has considered whether cell phone or computer use while driving may be considered willful and wanton behavior. But the evidence now exists that could reasonably lead a jury to conclude that it is. Our own Illinois Secretary of State, Jesse White, recognizes that driving while operating a cell phone is reckless. According to a recent Chicago Sun-Times article, White, who spearheaded Illinois' new anti-texting law, said, "Who can drive while putting their thoughts together, hitting the right keys and sending a message? That's a formula for someone getting hurt of killed." Three years ago a group of University of Utah psychologists "published a study showing that motorists who talk on hand held or hands-free cellular phones are as impaired as drunken drivers." If driving while intoxicated demonstrates a "reckless disregard for the safety of others" (and who would argue otherwise), then surely driving while texting, talking on the phone or computing demonstrates the same measure of recklessness. Employers must explicitly communicate to their employees that they are not to operate cell phones or computers while driving. Hopefully, doing so will reduce the number of employees who do so and will cut the number of drivers, pedestrians and bicyclists killed and seriously injured each year by inattentive driving. Only when employers formally institute a policy banning cell phone use should they be able to escape liability for punitive damages where an employee using a cell phone for work a related purpose while driving causes serious harm.

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• Ford Says No to Texting While Driving (abcnews.go.com)
• Distracted Driving: Should Talking, Texting Be Banned? (time.com)
• Feds weigh cell phone ban for bus, truck drivers (seattletimes.nwsource.com)

Website Gives Bicyclists A Way To Report Offending Motorists, But It Needs To Go Further

You've got a powerful weapon in your pocket. Use it to help make the streets safer for bicyclists. I'm talking about your mobile phone camera or video recorder. If some jerk cuts you off or is parked in a bike lane, take a picture of the driver's license plate (provided that you can do so safely). There are a couple of things you can do with the photo or video afterwards. You can ride over to the nearest police station and fill out a report providing a detailed description of the offending vehicle based on your photo. However, there are two problems with this approach as I see it. First, it's not clear that the police would actually issue a ticket to the driver, though they probably should. Secondly, it's a huge hassle to take the time out of your day to go do this. So what then. . .

You could post the photo or video online. There is at least one website that invites people to upload photos of vehicles behaving badly, mybikelane.com. On this simple, straightforward site cyclists can upload photos of vehicles operating illegally in bicycle only lanes. The idea is that the media and city officials will see the photos and either issue a ticket or at least be made more aware of the problem. Mybikelane.com catalogs offenders by city. It is a great idea, but does not go far enough in my opinion. Bikers should be able to post photos and video of vehicles engaged in all kinds of illegal behavior dangerous to bicyclists, not just bike lane violations. You should be able to upload your photos directly from your mobile phone also, rather than from your computer. A mobile version of mybikelane.com would be very helpful so that the violator's photo can be uploaded right from the scene. Also, the website needs to make more noise. According to the site itself, here in Chicago only 105 posts have been made, with none since June 11, 2009. There are only 52 Chicago members of the site. It seems unlikely that this site is getting anyone's attention in Chicago, which is a shame.

What I would like to see is a web based system like that recently developed by the NAACP for the reporting of police and civil rights abuses. Its system allows immediate uploading of photos and video of racial incidents. Powerful stuff. We need a similar system that can be used by bicyclists. Mybikelane.com is a great start. Let's take it further.