Exterminate the Risk of Distracted Driving from Your Pest Control Operation

While April is Distracted Driving Awareness Month, it’s always a good time to focus on fleet safety for your pest control operation as this is something that requires ongoing attention. In October 2021, the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) released its early estimates of motor vehicle traffic fatalities for the first half of 2021. While Americans drove less due to the COVID-19 pandemic, NHTSA’s early estimates show that an estimated 20,160 people died in motor vehicle traffic crashes from January to June of 2021. This represents an increase of about 18.4% as compared to the first half of 2020 and is the highest half-year percentage increase in the history of data recorded by the Fatality Analysis Reporting System (FARS).

As a business owner, it’s critical to identify potential risk exposures proactively in order to mitigate them. Getting behind the wheel today assumes more risks than ever, between technological advancements and drivers being more dependent on their mobile devices.

Aside from paying the ultimate price, which of course is the unnecessary loss of life, commercial drivers can be slapped with a number of costly violations for using handheld cell phones and, as their employer, your company may be liable. The Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) impose regulations that prohibit drivers who transport large quantities of hazardous materials from texting or using handheld mobile phones while operating their vehicles. Today, more states are passing laws that restrict or attempt to restrict cell phone use to keep people safe and curb distracted driving habits. In fact, 49 states currently have laws on the books that ban texting while driving, while 25 have laws that ban or restrict all handheld cellphone use behind the wheel.

Employers can be subject to increased liability for serious or fatal motor vehicle accidents caused by a distracted driver, particularly in a state that has adopted a hands-free law or under two key legal theories of negligence:

·    Under Respondeat Superior (which is Latin for "let the master answer"), employers can be held liable for accidents caused by employees if the employee was acting within the scope of his or her employment when the accident occurred;

·    Or through Direct Negligence, which states that an employer is responsible for negligently hiring, supervising and entrusting a vehicle to an unqualified employee.

According to the Network of Employers for Traffic Safety (NETS), on average, a non-fatal injury crash at work that involves distraction costs the employer $100,310. However, attorneys of victims involved in a crash will not hesitate to name the employer in a lawsuit where a company vehicle was involved. There have been a number of notable cases that have resulted in significant jury awards against employers.

Here are three important lessons cases such as this can teach fleet managers:

1.   When it happens to you, the plaintiffs will sue: Whenever applicable, the driver’s employer will always be named in the lawsuit, as the payout will usually be much larger from an organization than an individual.

2.   A written cell phone use policy is not enough: Whether a policy is well-documented or not, empirical evidence shows that many employee drivers ignore written policies. The bottom line is that written policies alone are not sufficient to change employee driving behavior, and therefore are not sufficient to protect employers from risk and liability.

3.   Policy enforcement is critical: Ask yourself, what, if anything, your company does to measure and manage compliance with its cell phone use policy. If the answer is nothing, the case law clearly shows that employers should expect to be held accountable for damages that occur when employees drive distracted.

Employers who want to minimize liability as much as possible must institute risk management programs to actively or passively enforce cell phone use policies. In addition, organizations that have fleet vehicles should review their insurance policy to determine whether cell phone use while driving may impact coverage and their fleet vehicle policy for compliance with applicable state laws.