Understand the Safety and Legal Risks
Date: November 2020
Minnesota has enacted laws limiting or prohibiting the use of cell phones while driving, in particular banning texting while operating a vehicle.1 Whether prohibited by law or not, the use of mobile devices by employees while driving on the job poses several safety and legal risks for members.
Safety Concerns of Using Cell Phones While Driving
Distracted driving includes any behavior that could divert the driver’s attention from the primary task of driving. All distractions endanger the safety of the driver, passengers and bystanders. Common distractions include using a cell phone for texting, calling or Internet functions; reading; eating; drinking; dressing; grooming; etc.
The Minnesota Department of Public Safety reports that distracted driving kills 40 people a year in the state and contributes to 195 life-changing injures. Distracted driving also contributes to one in seven auto accidents statewide. According to The Centers for Disease Control and Prevention, every day more than 1,000 people in the United States are injured and eight to 10 are killed as a result of distracted driving.
Legal Risks of Using Cell Phones While Driving
In Minnesota, it is illegal for drivers to use a cellular device, such as a cell phone, when the vehicle is in motion or part of traffic:1
- to compose, read, retrieve or send an electronic message.
- to engage in a cellular phone call, including initiating a call, talking or listening.
- to participate in video calling and live streaming.
- to access stored content (video, audio, images, games, software applications).
This applies even when the driver is stopped in traffic (e.g., at a stoplight or sign).
However, there are some exceptions to the above. When using the device in a hands-free or voice-activated mode, a driver may:
- initiate or participate in a cellular phone call; or initiate, compose, send or listen to an electronic message.
- view or operate a global positioning system or navigation system.
- listen to audio-based content.
In addition, a device may be lawfully used and held while driving for these limited situations:
- To obtain emergency assistance to report a traffic accident, medical emergency or serious traffic hazard.
- To obtain emergency assistance to prevent a crime about to be committed.
- In the reasonable belief that the person’s life or safety is in immediate danger.
- In an authorized emergency vehicle while in the performance of official duties.
An electronic message includes, but is not limited to:1
- text message
- instant message
- command or request to access a Web page
- voice mail message
- transmitted image
- transmitted video content, including through video calling
- transmitted gaming data
- other data transmitted using a commonly recognized electronic communications protocol
Violation of Minnesota Statutes, Section 169.475 is a primary offense, meaning that law enforcement can stop a driver who is unlawfully using his or her cell phone and issue a citation for the offense. The fine for a first offense is approximately $50 plus court fees. That amount increases to approximately $275 for a second or subsequent offense.
Additionally, distracted drivers can be ticketed for reckless or careless driving when their actions demonstrate a disregard for safety or the rights of others.2
If a driver operates a vehicle in a “grossly negligent manner” and causes great or substantial harm or death, the driver could be charged with a felony level crime.3
In addition to potential criminal charges, an injured party could bring a civil lawsuit against a driver whose distracted driving caused an accident. A successful plaintiff could be awarded compensatory damages, including loss of wages, medical expenses, and pain and suffering. Compensatory damages are intended to make the plaintiff whole, as if the accident had not occurred.
To date, Minnesota courts have not approved of punitive damages in a distracted driving lawsuit. Punitive damages are those awarded against a person as punishment for his or her outrageous conduct and to deter future similar actions. However, the trend is growing for plaintiffs to seek such damages, and the right set of circumstances could persuade a court to permit this. Punitive damages are not covered by most auto insurance policies.4, 5
In the event of a serious automobile accident, drivers should be prepared to have their cell phone requested as evidence, regardless of whether the driver was using the device at the time of the incident. This request may come from law enforcement that is investigating the accident or an injured party who is suing for damages suffered as a result.
If data is deleted before examination, the driver could be sanctioned for spoliation of evidence, which could jeopardize his or her case.⁵
Risk Management and Cell Phone Use While Driving
Recognizing that distracted driving can be a significant exposure for employees and the organization, members can take steps to help reduce distracted driving among their employees. Each member needs to decide how properly to protect the organization and its employees and limit liability. MCIT recommends members avoid or minimize as much as possible the risk of employees using cell phones while driving.
Implementing a cell phone use and distracted driving policy may be an appropriate risk management technique; however, as with any policy, several factors need to be considered. MCIT recommends that members ensure that policies are:
- reviewed for potential legal, arbitration or union issues.
- specific to the organization.
- clearly written and not overly restrictive.
- properly communicated and that training is provided as necessary.
- enforced throughout the organization as appropriate for each job function.
- periodically reviewed and updated as needed.
Also, employers should require that employees sign a document acknowledging receipt of the policy.
Methods to help reduce distracted driving include:
- looking for ways to set up the interior of vehicles to maximize vision for the driver and minimize distractions.
- informing employees about the dangers of distracted driving and providing them strategies to limit distractions while on the road.
To minimize the potential for spoliation of evidence, employers should inform drivers that they cannot delete cell phone records or content if they have been involved with a traffic accident while on the job. This means they should suspend any automatic deletion of records or content.
MCIT members have a number of free or low-cost resources available to them to assist in improving their employees’ driving safety.
Defensive Driving Training: MCIT provides members with no-cost defensive driving training to offer their employees. Courses are available for operating passenger vehicles, maintenance vehicles or multiple passenger vehicles. More information is available at MCIT.org/defensive-driving/. Members can contact MCIT at 1.866.547.6516 or email@example.com to schedule training or with questions.
Minnesota Safety Council: All MCIT members are provided a membership with the Minnesota Safety Council as part of participation in MCIT. The Safety Council has several resources available to help members in their safe driving efforts to prevent distracted driving, including sample policies and training materials. Information is available on the organization’s website: MinnesotaSafetyCouncil.org.
Minnesota NETS (Network of Employers for Traffic Safety): Assists employers with implementing effective policies and workplace programs to help reduce traffic deaths and injuries within its workforce. A number of free awareness and prevention materials are available through this program, including template policies, Power Point™ presentations, fact sheets, daily e-mail blasts, sample voice messages, fliers/posters, sample safety talks and other items. Members can access Minnesota NETS at MinnesotaSafetyCouncil.org/nets/.