October 27, 2010

1. October 27, 2010

2. WHO WE ARE • Ken Stecker, Prosecuting Attorneys Association of Michigan • Office of Highway Safety Planning

3. TRAFFIC SAFETY ISSUES • Seat belt use • Impaired driving • Red light running • Speeding • Aggressive driving • Distracted driving

4. SESSION OBJECTIVES • Current research and statistics • Recent and emerging legislation • Employer liability and how to limit it • Why a policy is necessary • How to implement a policy • Types of policies • Making the transition to a phone-free (or at least phone-reduced workplace)

5. POP QUIZ What percent of people think texting or e-mailing while driving is a serious safety threat? • 62 percent • 88 percent • 75 percent • 30 percent

6. ROAD BLOCKS • Voluntary compliance for safe driving is difficult • Most people think “other people” are the problem • Driving without a crash reinforces risky behavior • We’ve been conditioned to answer the phone, text • Time in the car has been seen as “down time”

7. ALARMING FACTS • Twenty percent of drivers text while driving • Cell phones cause 1.4 million crashes each year • 18 percent of fatalities are distraction-related • 30-39- year-olds have the highest proportion of cell phone distraction in fatal crashes

8. ALARMING FACTS • Crashes are the #1 cause of workplace death • An on-the-job crash = $24,000+ • An on-the-job injury crash = $125,000+ • An on-the-job fatal crash = $3.6 million+ • Using a phone while driving makes drivers four time more likely to crash: risks are even higher with texting and e-mails

9. THREE TYPES OF DISTRACTION • Visual- taking your eyes off the road • Manual- taking your hands off the wheel • Cognitive- taking your mind off what you're doing Texting includes all three types!

10. MICHIGAN LAW • No reading, typing or sending texts while driving • Driving is: operating a motor vehicle on a street or highway • Primary enforcement law • Exceptions for emergencies • No points, not abstracted • $100 first offense, $200 each time after

11. OTHER LAWS • Careless Driving • Reckless Driving • Reckless Driving Causing Death • Reckless Operation Causing Serious Impairment • Moving Violation Causing Death • Moving Violation Causing Serious Impairment • Moving Violation Causing Fault in a Collision

12. POP QUIZ The employer would be liable if their employee was in a crash if… • The employee was driving a company car and using a company phone • The employee was driving their own car and using a company phone • The employee was driving a company car and using their own phone • The employee was driving their own car and using their own phone

13. WHY EMPLOYERS ARE CONCERNED • Safety • Brand • Money

14. THE LEGAL LINGO Tort: Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability

15. THE LEGAL LINGO Negligence: Is "the failure to use ordinary care" through either an act or omission. It occurs when: • A person does not exercise the amount of care that a reasonably careful person would use under the circumstances; or • A person does something that a reasonably careful person would not do under the circumstances

16. THE LEGAL LINGO • Respondeat Superior: • Under the legal theory of respondeat superior, commonly referred to as “let the master answer,” an employer is vicariously liable for the actions of an employee if the employee was acting within the scope of his or her employment at the time of the crash.

17. WHAT IT ALL MEANS • If an employee acting within the scope of employment causes injury or death through negligent conduct, the victim or the family of the victim has the right to sue the employer directly for damages. • If an employee operates a vehicle negligently as a result of using a cell phone and injures or kills another motorist or pedestrian, that victim or family directly may sue the employer.

18. SUBSTANTIAL LIABILITY Substantial liability to the employer in three ways: • It is difficult to convince a jury that an employee on a phone at the time of the crash was not negligent • Scope of employment is generally defined very broadly • Even if an employer is not subject to vicarious liability, it can also be sued for failing to take adequate steps to prevent distracted driving

19. EXAMPLE • College student killed by off-duty police officer • Officer was speeding and texting prior to crash • $4 million verdict

20. EXAMPLE • Woman seriously injured after crash with lumber company employee • Cell records show use at the time of the crash • $21 million verdict

21. EXAMPLE • Attorney using cell to conduct company business • Hit and killed a teen at 10:30 p.m. • Records show a work-related call • Firm settled with victim’s family

22. POP QUIZ Does your company have a policy regarding cell phone use in vehicles? • Yes, no talking or texting at any time • Yes, no texting • Yes, only hands-free communication allowed • No

23. WHAT YOU CAN DO Implement and enforce internal cell phone use policy for all employees, including temporary employees, paid or unpaid interns and contract employees

24. BEST BEHAVIOR Employees should: • Keep eyes, minds and hands focused on driving • Update voicemail to include an “I’m driving” message • Allow plenty of travel time • Preset radio, GPS and other electronics before driving • Avoid emotional or stressful conversations

25. A POLICY IS THE BEST POLICY • Enforce Michigan law • Enforce Federal laws • Improve safety • Limit liability • Lower expectations of accessibility • Show a proactive approach

26. TYPES OF POLICIES Three types of policies: • Restrictive • Balanced • Permissive

27. RESTRICTIVE • Bans calls, texts, e-mails • Requires drivers to pull over to make even emergency calls • Supported by the National Safety Council

28. BALANCED • Acknowledges that employees may not always be able to stop driving • Bans texting, e-mailing and web browsing • Allows the use of hands-free phone for priority contacts and emergencies

29. PERMISSIVE • Permits calls, texts and e-mails with hands-free or in-vehicle devices

30. TECH SAVY A variety of technologies are available tolimit or monitor texting • Downloadable apps • Software • Key-fob technology

31. STEPS IN THE RIGHT DIRECTION • Research • Know the laws • Identify best and worse case scenarios • Craft a comprehensive policy

32. STEPS IN THE RIGHT DIRECTION • Require employees to read and sign policies • Remind employees of policies • Enforce written policies • Keep employees in the loop • Show personal leadership through compliance

33. NO PHONE!? HOW CAN I GET ANYTHING DONE?

34. POP QUIZ Why are cell phones and texting important to your employees? • Greater productivity • The car is the office • Allows flexibility

35. MAKING IT WORK • 63 percent of fleet companies have a technology policy • Of those, nearly 97 percent ban texting/e-mail while driving • 70 percent of companies with a policy reported an increase or no change in productivity • 20 percent of those also saw a drop in crashes

36. SUCCESS STORIES • 95 percent of employees reported that they didn’t experience a decrease in productivity as a result of the ban • 83 percent said they also reduced or quit using phones while driving outside of work

37. THE BOTTOM LINE • Employers must institute strict policies that include discharging those employees who fail to follow the policies that are in place • If the employer fails to put such a policy in place, the employer runs the risk of having the repercussions follow them for many years to come

38. RESOURCES • National Safety Council • www.nsc.org • OHSP Employer Outreach www.michigan.gov/trafficsafetyatwork • Drive Safely Work Weekhttp://trafficsafety.org/drivesafelyworkweek

39. Ken Stecker Traffic Safety Resource Prosecutor Prosecuting Attorneys Association of Michigan 116 West Ottawa Lansing MI 48913 (517) 334-6060 x 827 SteckerK@Michigan.gov