Posted By Alan Sackrin on April 6, 2017
What happens when someone is in an auto accident with a distracted driver who is using his or her car for work? Is the driver’s employer responsible for compensating the victim for their injuries? In Florida, the answer is yes — if certain facts about the car accident are present.
Distracted Driving on the Job
The definition of distracted driving is the same whether or not the at-fault driver was on the job. The Centers for Disease Control and Prevention (CDC) define distracted driving as “any time you take your eyes off the road, hands off the wheel, and mind off your primary task: driving safely. “
Distracted driving is any kind of activity you undertake while you are driving a motor vehicle. Whether it is due to eating, reaching for something in the back seat, or texting/ talking on the phone. It is a behavior that takes your focus off of driving, which increases the likelihood of a motor vehicle accident.
For workers who must drive on Florida roads as a part of their job, the causes of a distracted driving accident can be more complicated than for most ordinary drivers.
For example, someone who is driving their car, truck, or van as part of their job may be more likely to be distracted by things like:
- Watching the clock because they are concerned about getting to their destination on time;
- Thinking about tasks and work duties while driving;
- Fatigue or being tired from working on the job; or
- Using their phone while driving to check for text or emails from their employer, or customers.
Distracting Driving While on the Phone
The use of cellphones and smartphones while on the job is the biggest concern when it comes to distracted driving accidents, including rear-end accidents. According to the National Safety Council, drivers are 400% more likely to have a motor vehicle accident if they are driving distracted by using their phone.
This is true even if the employee is using their phone hands-free. The NSC reports that hands-free devices do not keep people safer; it’s the distraction of communication, not the physical holding of the phone in your hand that increases the danger of a crash.
Florida’s Distracted Driving Law
Currently, the State of Florida does not have a ban on talking on a cellphone while driving. In fact, the only distracted driving phone law currently in effect for Florida drivers is a texting-while-driving ban, which applies to all drivers (even school bus drivers are not legally banned from using cell phones).
What Does Industry Research Say About Distracted Driving?
According to Travelers’ Insurance, employers know very well that distracted driving is a problem that needs to be addressed. In fact, industry research reports have “close to one-third of businesses” reportedly concerned about having their workers driving distracted while on the job. In the same report, 65% of the employers had workers out on the road while using their own personal vehicles.
How Is An Employer Liable For An Employee?
Of course, one big reason that companies are concerned about distracted driving is because of financial liability. According to the CDC, a non-fatal motor vehicle accident caused by a distracted employee costs the employer on average $72,442.
This is because when an accident is caused by an employee who was driving on the job, then the accident victim can sue the driver’s employer to recover damages, including medical expenses, pain and suffering, lost wages and the loss of the enjoyment of life.
The company who is responsible for that distracted employee can be held liable under two legal theories:
1. Respondeat Superior
Under Florida law, the legal doctrine of “respondeat superior” exists to make an employer legally liable for the actions of its employee that are undertaken as part of their job or work duties. If the accident happens while the at-fault driver is in the “scope of his or her employment,” then the employer shares responsibility for the damages its employee causes to a victim.
2. Negligent Hiring or Entrustment
Florida law will also hold the company / employer liable for the accident damages if the injured victim can prove the distracted driver (the employee) was not qualified to be out there on the job at the time of the crash. The employer, who is negligent in hiring that driver, or in supervising him as he drove that motor vehicle as a part of his work, can be legally liable for any motor vehicle accident he causes while on the job.
What Type Of Employee Behavior Can Create Liability For The Company?
If the victim can prove any of the following, then the employer may be liable for the accident, including:
- The employee was texting while driving (obtain cell phone records);
- The employee was talking on the phone while driving (again, cell phone records);
- The employee was eating food or putting on makeup while driving;
- The employee was engaged with the motor vehicle’s information or entertainment system while driving; or
- The employee was driving after working for an extended period of time (driver fatigue – check driving logs).
What About Insurance?
Most businesses have an insurance policy to minimize the risk of employee caused distracted driving accident. Some of these policies cover punitive damage awards in these motor vehicle accidents.
Consequently, insurance companies are working with their policyholders to find ways to minimize the risks of distracted driving accidents by employees as well as defenses to these claims.
Internal Company Policies on Distracted Driving
Companies are encouraged to implement internal policies that fight against distracted driving. These include the following suggestions from the National Safety Council:
1. Cell Phone Policies for Employees Who Drive While On the Job
Companies should have established policies for their workers. These cell phone policies should explain the best safety practices for using a phone on the job. Coverage should include things like the risks of hand-held versus hands-free devices, and discouraging or banning work-related communications while any worker is behind the wheel.
2. Education and Oversight
Companies should also have training for any employees that are expected to be behind the wheel, as a part of their job. Training sessions should explain the dangers of distracted driving and how to minimize those risks.
Employers should then monitor and oversee their employees as they are on the road. Are they in compliance with the company’s distracted driving policies? If someone calls them while they are driving, is their phone on? Do they pick up the call?
3. Federal Government Support for Company Distracted Driving Policies
The federal government is also at work here. The Department of Transportation has free sample employer policies as well as free memoranda and company news releases for employers to use in setting up internal policies against distracted driving.
Does a Safety Policy Protect An Employer From An Employee Caused Distracted Driving Claim?
Even if the company does have an aggressive safety policy for its employees who drive while on the job, this will not be enough to prevent the employer from being liable for an accident.
Under both state and federal law, companies are responsible for making sure their employees obey all laws – including traffic laws – while on the job.
Appendix A of the National Safety Council’s report on employer’s liability and the case for comprehensive cell phone policies contains a list of federal regulations, state laws, and municipal ordinances that apply to employees using cell phones while driving.
In a motor vehicle accident, even if there is no distracted driving law banned the use of cellphones while driving, the driver may violate other laws including traffic laws for speed limits, crossing barricades or lane markers, failing to brake, failing to keep a certain distance from the car ahead, etc.
Most employers who are sued because an employee was driving while distracted will have an insurance adjuster and/or defense lawyer working on their behalf to minimize the financial exposure of their insured for the accident. They will raise several types of defenses in an attempt to shift all of the risk to the employee.
Company Defenses That Don’t Hold Up
First, they may point to their safety policies and company manuals and argue that the employee was operating outside of company protocols. In an attempt to escape liability, they may argue they did all they could to prevent the accident from happening and the worker was insubordinate, causing the accident.
Additionally, they may try and argue that the driver was using a personal phone, not one owned by the company. They may otherwise argue, the driver was on the job, but driving his own car at the time of the crash. These are defenses that aren’t likely to be persuasive.
Meaning, the company can still be held legally liable for its employee’s negligent or careless driving.
The key issue is if he or she was at work and on the job at the time of the crash. Legally, this is known as acting “within the scope of his or her employment.”
Viable Legal Defenses To A Distracted Driving Claim
Based upon their years of defending against these claims, an insurance company will raise as a defense the scope of employment doctrine or the plaintiff has failed to meet its burden of proof. They will argue:
1. The Plaintiff Has Not Proven the Distraction
It is difficult to prove distracted driving. For example, if the employee was on a company phone at the time of the accident, then company phone records will need to be produced and reviewed to confirm this information. Even if the employee was on the phone at the time of the accident, this fact isn’t conclusive of liability. Another example is if the employee was eating a burger while driving, then the plaintiff will have to prove the distraction by providing photos of the burger wrapper in the wreckage and a time-and-date receipt from the fast food restaurant which shows time proximity to the accident.
Furthermore, the plaintiff will still have to deal with an experienced defense lawyer trying to have evidence excluded, or deemed privileged, as well as arguing the plaintiff failed to meet its burden of proving, by a preponderance of the evidence, that a driver distraction was the cause of the car accident.
2. The Driver Was Not On the Job
The company will be liable for the driver only if the driver was on the job at the time of the accident. The defense will likely move to dismiss the claim against the company if there are facts that show the driver was not working at the time of the accident (or not working within the scope of his or her employment).
If the accident happened at ten o’clock at night, then was he or she on the job? Maybe not if it was a standard workday that ended at five o’clock; maybe so if the driver was attending a work-related seminar or was at night school courses paid for by the employer.
3. The Plaintiff Was at Fault
In Florida, if the accident victim was partially to blame for the crash, then the damage award will be minimized by that percentage of fault. If the jury finds that the accident victim was ten percent to blame for what happened, then the total damage liability for the defendants is cut by 10%.
What Should You Do?
When you discover that the driver who caused your car accident was on the job at the time of the wreck, it may not mean that much to you at the time. That’s because you’re busy dealing with medical expenses, doctor visits, and getting back to work.
However, rest assured that the company and its insurance carrier are working hard to minimize the company’s financial exposure for the accident. This is true even if they know that the driver was on the job at the time of the accident.
In these situations an experienced Florida auto accident lawyer can help you present your claims for damages against the driver’s employer as well as getting you justice for your harm.
A good piece of advice if you or a loved one have been injured in a car accident where the at-fault driver was on the job at the time of the accident, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and to learn how most insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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