We all spot the drivers that are talking on their phones while on the road. They’re numb to what they are doing, and to what they are doing to everybody else around them.
If we’re honest, and at all perceptive, we know that numb feeling because we’ve experienced it ourselves. Whether it was reading a text from our kids, dialing a friend to let them know we were running late, or indulging the prospective customer’s call during rush hour, we knew afterwards that the phone had come between us and the road.
That realization was enough for many of us to change our ways personally. And the related realization of potential civil liability has, likewise, been addressed by adding polices to our employee manuals: while driving, no texting, no emailing, and no calls without a handsfree device. “Great, now we’re covered.”
No, in two important ways, you’re not.
First, while handsfree devices help drivers keep their hands on the wheel, they only facilitate the fact that the driver’s mind is not on the road. Laws that suggest that the problem is what the hand is doing instead of what the mind is doing only reinforce the fallacy. When we talk on the phone, our minds and senses are impeded from focusing on the road. We lose that necessary periphery access that safe driving requires. Making our hands the scapegoat, not our minds, ignores what we learned back when we were being honest with ourselves. Drivers aren’t driving recklessly because they have a soda in their hand. They dangerous because their minds are elsewhere.
In 2017, over 37,000 people died on our roads. Bennie Gamble, Jr. and Shane Miller were two of them. The woman who killed them was required by her employer to be on a handsfree device when she drove while phoning. The 20-minute call she took from a powerful customer she referred to as her “boss” ended only when she killed Shane and Bennie, Jr. The phone call didn’t cause the fatalities despite there being a handsfree policy in place, but because of it.
On a sunny day, Judy was driving on the highway at over 80 mph when she saw two cars stopped mostly on the shoulder. She observed the three people working to fix a tire. But she didn’t respond the way every other driver did. She didn’t slow down. She didn’t change lanes, but she did engage her turn signal. That’s when her SUV’s collision alert system sounded. There was nobody next to her but, because her perception was impaired by the hands-free call, she didn’t know that. She interpreted the alarm to mean, “Somebody is already in that lane,” instead of, “You’re going to hit the people ahead of you if you don’t do something now.” Between hitting the pedestrians ahead or taking a sideswipe from an imagined vehicle, she chose the pedestrians. Again, her perception was impaired by the hands-free call.
If the update to the employee manual — “While driving, no texting, no emailing, and no calls — would cure the first defect in the policy, what would fix the second way in which the rule leaves an organization exposed?
In the pending wrongful death lawsuit, in addition to suing Judy and her employer, I also have sued the powerful customer she referred to as her “Boss.” In the suit, I am advocating for his liability. Outside of the suit, I’m advocating for the addition of another sentence to every employee manual that does not already have it: “Do not engage in phone or text conversations with anybody that you know is driving, or with anybody who you suspect is driving.”
The “boss” on the other end of the phone was an experienced anesthesiologist. As such, I argue that he appreciated better than most that he was actively impairing Judy’s brain by engaging her in a 20-minute business call. If so, he did not need a policy to tell him not to.
For everybody else, let’s tell them.
Marc Lenahan is a severe personal injury attorney and the owner of the Lenahan Law Firm, headquartered in Dallas, which focuses on trucking and commercial liability after catastrophic losses. Though the Lenahan Law Firm limits it representation to a handful of clients at a time, they have served clients on five different continents for severe injuries and deaths occurring across the United States. Marc is also the Chairman of the National Compassion Fund, which provides a single, trusted way for the public to know that 100% of its donations go to their intended beneficiaries: the victims of a mass casualty homicides such as the Pulse Nightclub, Las Vegas MGM, Marjorie Stoneman Douglas High School, and the recent El Paso Walmart shooting.