Wednesday, September 11, 2013


Wireless communication
With on-the-road employee
Can lead to legal consequences

CYA with advertised, enforced P&P

Two New Jersey teens were texting while one was driving.

The vehicle driven by the teen on the road struck and injured two people.

The injured parties sued both the teenage driver and his texting partner, the latter on the grounds “that (the partner) had was contributorily negligent in that she ‘aided and abetted’ (the driver’s) unlawful texting while driving and second, that (the partner) had an independent duty to avoid texting a person whom she knew was driving.”

The case made its way to an appellate court that ruled that “We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had a special reason to know that the recipient would view the text while driving and thus be distracted.”

The bottom line according to a Kirsten Thompson article in The Second Opinion titled Sender of a Text Message Can Be Liable for Distracting a Driver is that

  1. Employers, especially those which use wireless communication for their field employees (e.g. dispatch, work order management, etc.), may want to ensure their policies around such communication clearly state that they are not to be used while driving. A robust policy in this regard may assist in establishing that the employer had a reasonable expectation that an employee would not review any communications received while driving. Certain employers, particularly those using communications technologies that are integrated into vehicles, may want to consider installing technologies that disable such communication while the vehicle is in motion.
  2. Similarly, auto manufacturers that have embedded communication technologies may wish to include strong warnings about the use of such technologies while driving or even consider making available the option of a kill switch that disables the technologies while the vehicle is in motion

For the ERM practitioner, the criticality of policies and procedures (P&Ps) once again comes to the fore.

While ERM practitioners normally do not create P&Ps, they should try to work closely with the people who DO crate P&Ps – typically HR and Legal – to make certain the P&Ps are read and understood by all personnel

    (a)  When the P&P is initially published.

    (b) )  When a new hire comes on board.

    (c) )  At an annual review, either near the employee’s hire anniversary or at an “all hands” annual meeting.

The duty of an ERM practitioner is to alert management about potential threats and then to recommend means to avoid or at least mitigate the threat.


If I wrote it, you may quote it

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