Buckle Up, Put Down the Phone: Lawsuits Are Coming

St. Louis attorney Karen Baudendistel, Partner in the firm Armstrong Teasdale, joked about putting the fear of God into attendees of NAFA's 2012 I&E session, Fleet Liability Issues. And then she actually did.

Baudendistel, who specializes in defending corporate clients in wrongful death and catastrophic injury cases, began her engaging and well-attended presentation by asking everyone present to take out their cell phones. She then instructed half the room to text the word "safe" on her command; a quarter to place a call; and the final quarter to just keep the phone nearby, but not look at or touch it. Then, on the word go, Baudendistel projected a screen with sixteen different images, from a pile of money to a picture of a puppy. It remained up for two seconds—with those texting and placing calls doing so at the same time -- and then she asked members of the various groups how many images they could recall. The results were as expected; those who were distracted took longer to respond, and therefore, couldn’t take in the relevant information fast enough. And even though the two seconds went by quickly, she said, it was more than twice the generally accepted three-quarters of a second acceptable reaction time for drivers.

"Those of you who got two-or-zero of the sixteen? Guess what? You just killed somebody," she said. "You had two seconds, but you never saw the child run into the street after the ball."

But the rising alarm didn’t end there. Nine states now have laws banning hand-held cell phone use while driving. Thirty-five have texting bans for all drivers, and seven more for novice drivers. Companies increasingly have cell phone policies for drivers, as well—though a quick poll of the audience showed that many had cell phones that the company owned or subsidized in some way and even with the policies, were still expected to use them.

"They call you!" she said. "They want you to talk on the phone. They give you that phone so you can be accessible twenty-four hours a day, and they expect and know that you use it while you’re hurtling down the highway."

But just because everyone does it doesn’t make it OK—and it certainly doesn’t mean it will stand up in a court of law if something happens. "Do any of you do business in the states that prohibit talking on the phone?" she asked. "What happens when you’re in one of those states, and you’re on the phone with your boss, using the phone that the company gave you and fully knew you would use, and you have an accident, and you obviously had more than three-quarters of a second in which you could do something and you didn’t? It doesn’t take a very smart plaintiff’s lawyer to figure that one out. They’re not just going to sue you. They’re going to sue ‘the man.’"

In Missouri, she said, things go one step further: there’s a "legal quagmire" in which employees can sue co-employees. So if there happens to be a passenger in the car at the time of the accident, that rider can sue the driver. Or, if there’s a mechanical problem with a vehicle, and a driver gets hurt, that driver can sue the mechanic. "That mechanic is probably under pressure to make that vehicle to go a little further, to make those brake pads last a little longer, right? He may keep good records. Or he may not." Sooner or later, she said, a lawsuit will come. The question, however, is whether it’s possible to make that lawsuit go away.

The answer is in document retention. "I know," she said. "Boring. But when your driver has an accident in your company car, do you get his cell phone records and keep them? You should." Those who pay for the phone should be able to see the call and text records, she said. And if the driver happens to be using his own cell phone at the time of the accident, that driver should be willing to turn them over anyway. "Even if the driver wasn’t on the phone at the time of the accident," she said, "half the jury will think he was. First you do drug and urine testing, and then you get the phone records. They’re not going to say no. But if they do say no, there may be other issues. You may not think it’s your burden of proof, but it is."

Baudendistel also addressed the taking of photos immediately after an accident -- fully understanding that most people involved will start snapping them before the insurance adjustor arrives. Encourage drivers to take photos with their cell phones if there’s anything that might help their case -- but not if the evidence points otherwise. And if there are photos, she said, make sure the company gets good copies before the driver changes carriers or they’re lost. "If a jury hears that there were photos taken immediately after the accident, but they’re now gone because the driver changed carriers, what do you think the jury is going to think? That those photos made you look good, or not?... It’s difficult to prove things."

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