1. #1
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    Mar 2002
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    Default Safety Food For Thought

    This is part 2 of a multi-section article from SafetyXchange.com regarding use of cell phones while driving.


    The Law of Cell Phones, Part 2 of 4

    By Glenn Demby, Esq.

    Getting your company to adopt a ban on cell phone use by employees driving company vehicles is a no-brainer as far as safety is concerned. But it’s also bound to be an unpopular measure and one that’s hard to sell to management. Invoking the threat of liability can help you overcome resistance. The problem is that few states (or provinces) ban the use of cell phones while driving; and even where such bans are in effect, they’re limited in scope since they allow for hands-free devices. (See the Map in TOOLS for a visual depiction of the state of cell phone laws across the U.S.)

    So where can a safety director turn for support? Answer: The source of liability for accidents caused by cell phones is the law of tort. Last week, we explained what tort law is generally all about. Now let’s look at how it applies to cell phones.

    The Risk of Negligence Liability

    Negligence is the Sun King of torts. It’s the tort everybody has heard of, the one that spawns the most litigation. Negligence law is fairly straightforward: Persons are guilty of negligence if:

    They owe a person (who we’ll refer to as a victim) a duty of reasonable care;

    They don’t live up to that duty;

    The failure to show reasonable care causes the victim to get hurt; and

    The victim suffers damages.

    Just about anything can be negligence — from failing to signal a turn to leaving a banana peel on a crowded train platform.

    Negligence can be committed by individuals or companies. This exposure to liability is a major concern for all companies and the reason they need liability insurance. Of course, a company is really an amalgamation of the individuals who work for it. So, when companies are sued for negligence, it’s usually because one or more of its managers or employees did something wrong.

    Cell Phones & Negligence

    Okay, let’s apply these principles to cell phones. Driving distracted while talking on a cell phone can be negligence if it results in a traffic accident in which somebody gets injured. And, if the driver is driving a company vehicle and doing his job, not just the driver but his company can be liable.

    Example: One of your workers is driving a company van. He’s on his way to deliver materials to a construction site. He’s talking on the cell phone to his supervisor getting detailed drop-off instructions. He’s so caught up in the conversation that he drives right through a STOP sign and plows over a pedestrian crossing the street. The victim is left paralyzed as a result.

    The victim could sue the driver for negligence. But he probably doesn’t have a lot of money. So the victim and her lawyer would likely look for a deeper pocket to sue — like the company that hired him and let him do his job in a dangerous manner. And the victim would have a strong case. She could make at least two arguments for holding the company liable:

    1. The Company Was Directly Negligent. The victim could claim that the accident was the result of the company’s own negligence. Letting workers talk on cell phones when they drive is a violation of the duty of reasonable care because it exposes other motorists and pedestrians to the risk of traffic accidents. Thus, the victim could argue that the company’s failure to ban cell phone use was negligent.

    2. The Employee Was Negligent and the Company Is Responsible. The victim could also try to pin responsibility for the accident on the company using a theory called vicarious liability. Under this theory, a company is liable for injuries caused by their agents or representatives if they’re negligent while doing their jobs (or, as lawyers describe it, “acting within the scope of their employment”). The victim in our example would have a strong chance of winning a vicarious liability claim against the company because:

    The driver of the van was the company’s employee and thus its agent;

    The accident was the result of the driver’s negligence in running the STOP sign; and

    The negligence took place while the driver was doing company business and thus was within the scope of his employment.


    The above example isn’t just speculation by a lawyer. It’s patterned after actual negligence cases that have worked their way through the courts. The Monday after Memorial Day, in Part 3 of this series, we’ll look at the lawsuits against companies involving traffic accidents caused by employees on cell phones.

    If you don't do it RIGHT today, when will you have time to do it over? (Hall of Fame basketball player/coach John Wooden)

    "I may be slow, but my work is poor." Chief Dave Balding, MVFD

    "Its not Rocket Science. Just use a LITTLE imagination." (Me)

    Get it up. Get it on. Get it done!

    impossible solved cotidie. miracles postulo viginti - quattuor hora animadverto

    IACOJ member: Cheers, Play safe y'all.

  2. #2
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    Oct 2001
    Northumberland, United Kingdom


    Many companies over here in the UK have clauses in their vehicle insurance which invalidates the policy if the driver can be proved to have been using a mobile phone at or very close to the time of a collision.

    My police force successfully proved in the case of a fatal collision through phone records, reconstructions and witness testimony that the driver of the offending vehicle was usuing his mobile at the point the collission occurred. He got an extra 3 years for that.
    United Kingdom branch, IACOJ.

  3. #3
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    Dec 2005
    Lambertville, MI


    I'm a hypocrit about this. I dislike cell phones when people sit at green lights and do stupid things, but I'll answer the occassional call from a friend/family member while driving.

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    Experiences that Made You Decide to Dedicate Yourselves to Safety

    By the SafetyXChange Members

    In last week’ s article, [http://www.safetyxchange.org/article...=293&cha_id=5] veteran safety professional Art Fettig made a bold statement. Most of the people in the safety profession, Art said, got into the field as a result of a single life-altering experience. Art then described his own defining moment. We asked you, the members of SafetyXChange, to share yours. Here are some of the responses we received. I’ m sorry but in the interest of space, we had to omit and shorten some of the responses. One more thing: The title of each vignette comes from us, not the authors.

    Glenn Demby

    There but for the Grace of God...
    One day, my supervisor asked me to ”volunteer” for an extra week at a nearby oil rig. I was reluctant, having already spent two very busy weeks at a remote location away from my wife and four small children. I wanted to go home and I needed just a few more days on the rig to finish my tour. But I was pressured into putting in the extra week at the other rig. So there I was settling in for a helicopter ride and thinking to myself, “Ain’ t life grand!” As we lifted off I looked at the black storm clouds forming over the dark-gray ocean and marveled at what lay below me, the largest, mightiest oil rig on earth, the OCEAN RANGER. It was Thursday, February 11, 1982.

    Three days later, on of all days Valentine’ s Day, the OCEAN RANGER capsized and sank and threw the entire crew into the chilly North Atlantic. A wave of more than 100-feet-high breached the main structure and destroyed the ballast control room. All 84 crew members perished — some immediately from drowning and others more agonizingly suffered a prolong death from hypothermia. 56 of these men were from the province I call home, Newfoundland. Hardly any part of our province escaped losing a father, son, brother, husband or friend. Only 22 of the bodies were ever recovered.

    The board of inquiry in the U.S. and Canada found dozens of faults leading up to this tragedy, including lack of or incomplete training, lack of safety equipment, the list is too long to fully recount.

    The experience had a dramatic effect on me, and on my family and friends. It caused many sleepless nights and heart-wrenching days as we attended funerals and memorial services for the dead and the missing. I thought it would never end and it affects me to this day.

    A steelworker’ s motto is, “Mourn the dead and fight for the living.” Do your job, whatever that safety related job is, and pray, or meditate, or whatever you do to find peace that you do your job well, so that tragedies like this never happen again.


    Evolution Not Revolution
    I am slightly different from most safety people. I cannot give one event that led me to this profession. Instead the passion grew to become almost a religion. I know that everything I do will help someone go home to their family, it will help them in all parts of their lives and I truly believe that I make a difference. Other than the “Single Incident” theory I feel everything that Art described.

    Edward Hennings
    EH&S Coordinator
    Cummins Cal Pacific

    From Treating Injuries to Preventing Them

    Art’ s Article on the moment he became dedicated to safety struck a chord with me. I began my career as a first aid attendant in the petroleum industry, primarily on seismic jobs. I saw many injuries and accidents, some pretty serious. But none touched me like the night I was called out to a vehicle roll-over. There were 6 young men all under 25 in a crew cab truck when it rolled. No one was wearing a seatbelt so several of them were thrown from the truck. The truck rolled over two of the men killing them, while two others were critically injured.

    What has always stuck with me about this incident is that it was totally preventable. Not only could the roll-over have been prevented by driving slower, but if they had been wearing their seatbelts even if the vehicle rolled I suspect the outcome would have been significantly different. Shortly after that I quit working as a medic and got into safety. I had enough picking up the pieces from workplace accidents; it was time to start preventing them.

    Name withheld

    A Life Dedicated to Safety

    I started with safety in fourth grade when I was on the safety patrol. I wore a badge. It was cool.

    During my tour in the Navy during Viet Nam I was in ordnance handling department on the aircraft carrier, U.S.S. Coral Sea. On my third cruise I volunteered to be the safety guy and had clearance to observe and instruct the assembly and handling of bombs on the carrier. I was an E-5 and with some authority and the blessing of my Ordnance Handling Officer and the Captain, I was able, I’ m sure, to help prevent numerous incidents. It was very rewarding, but quite a challenge. On my third deployment overseas I was awarded the Navy Achievement Medal, signed by the Secretary of the Navy, for my efforts.

    After my service I became a machinist and witnessed numerous accidents, some very disturbing. Again, safety became a big part of my life. Thirty years and many companies later, I found my current employer. I hired in as the Shop Supervisor but when our safety manager left six years ago I volunteered to replace him. My job title changed from Machine Shop Supervisor to Safety Administrator and the rewards began again. I have full support from our managerial staff, especially the owner and have been partnered in creating a most safety-conscious company.

    I know this isn’ t as life-altering a story as the one by Art Fettig, but it was for me.

    Jim Bergstrand
    Safety Administrator
    Tri Tool Inc.

    A Preventable Death

    It was in the ‘ 80s. I was in the military. There was a route march – 10 miles, pretty standard stuff for that unit. This one was a little different because it was 125 degrees or so. It was always standard practice to have an ambulance follow each group. This particular group was tough — they didn’ t need one. A young soldier in his late teens fell behind. No one stayed with him even though that was common — they were tough. Hours after the march was over a search began. He was found severely dehydrated with his organs shutting down. Everything possible was done but it was too late. He died. The investigation determined it was the victim’ s own fault. He didn’ t eat a proper breakfast and he was on a diet and he was getting too much sun and he wasn’ t keeping fit and so on and so on and so on. I’ m not sure if his parents bought it. No one connected with the incident was allowed to talk to them.

    I wasn’ t part of that unit and there wasn’ t anything I could have done. I didn’ t even know the young man, but I knew all the people who tried to save his life. Even after I left the military, I remember that incident and how such a small oversight could cost so much. There were several opportunities to prevent this incident. Simple, standard, procedures were ignored. Peer pressure and ignorance cost a young man his life. Things like that went on then and still go on. I made sure they did not go on in my unit and gladly paid the price when required. I even got the opportunity to take on safety and there is no tougher audience than a bunch of 18-22 year old young men who think danger and mayhem is their business and only the other guy gets injured or killed. It is an odd culture that will spend days training people how to safely handle and use a rifle but then just hand them a chainsaw and tell them to get busy on a pile of brush.

    Dave Rebbitt, CRSP, CET, CHSC, CD1
    Superintendent, Safety & Training
    Diversified Transportation
    Fort McMurray, Alberta

    Crying Over Spilled Milk-Product

    My experience came one day while I was an employee of a local grocery store. I was working my way through college and was in a hurry (how often do we hear that phrase associated with accidents) to complete my duties as a conscientious employee, filling the dairy case with products to be sold for our customers. In my haste, I accidentally dropped a 12-ounce container of cottage cheese and it spilled on the floor. Like a dutiful employee, I immediately went to get a bucket of cleaning solution and a mop to clean up the mess I had just made... leaving the spilled cottage cheese unguarded on the floor near the dairy case... not thinking that it would be a problem. I was devastated, when upon my return, I found that an unsuspecting senior citizen, intent on completing her shopping, stepped on the spilled cottage cheese, causing her to slip and fall - resulting in a broken hip - a trip to the hospital and much pain and suffering.

    As simple and uncomplicated as that seems, that was the turning point in my life. Growing up in the home of a fire fighter I have many remembrances of my father racing off to help others whose homes or businesses had been affected from fire. The experience of that day in the store and the unnecessary suffering that my lack of prevention had caused for that sweet elderly lady brought back all the fond memories of my dad helping others and my desire to whatever I could to prevent human suffering. From that moment on I resolved to make a difference.

    Eric E. Johnson, MS, CSP
    Safety Engineer/Technologist
    EG&G Defense Materials, Inc.
    Tooele Chem Demil Project
    11600 Stark Road
    Stockton, Utah 84071

    A Firefighter Remembers

    My experience was not unlike the one that catapulted Art Fettig into the world of safety. I was a naive and young inexperienced firefighter in a Bonnie Brook volunteer company. Bonnie Brook in those days was an unincorporated area just north of Waukegan, Illinois.

    The experience happened two weeks into my stint, on my very first fire. To my excitement - it was a garage fire. Clearing the steps on the way to my car, I saw the smoke in the sky, which excited me even more. I somehow managed to arrive at the scene “safely,” if you want to call it that — I was anything but safe, traveling at high speeds, rushing to a fire with my blue-light flashing on my dash, half-way blinding me, even in the daylight hours, not to mention what it is like to experience a blinding blue-light reflecting off of the windshield.

    Upon arrival at the scene, in my excitement, I struggled to get on my fire-gear (which accompanied me to each call). If you can picture cars lined up along the sides of the road and a fire truck in a driveway, it was a daunting experience, seeing the fire was already out as I rushed up the driveway. It was than I stopped short in my tracks as a firefighter carried out a 9-year-old boy in his arms with his flesh hanging from his body and those eyes, I will never forget them, the look, the stare coming from his mournful eyes. Those eyes had a message specifically for me - they said that is all right, you’ ve done your best.

    This boy’ s life was to forever change because you see he survived this horrific ordeal while his friend who was with him died. They were both 9-years old and like other kids in those days, were curious and wanted to learn. They went into the surveying garage and closed the door behind them. They found an acetylene striker in the midst of gasoline fumes building up from an open 30-gallon gasoline can in an enclosed space. Well, this has forever changed my view on firefighting, which began my journey into the world of safety. For me it was my hallmark as a safety professional, which began on that fateful day in 1966.

    Bill Rainey CNA
    Risk Control
    U.S. Insurance Operations
    Farmington Hills Branch

    A Lesson from Childhood

    My safety story that I will never forget was back when I was 11-years-old and my little sister was 3. My stepfather was an ex-marine and drove a tractor-trailer for a living.

    He was very strict and I feared him as a kid. Because my dad traveled, we had things that kids should not have had: fireworks. We learned as he did — the hard way. We grew up on a river and seemed to always have a crowd on holidays. One Fourth of July, my dad was the fireworks person and, of course, he never read directions or warnings because he knew what he was doing. We all gathered to watch dad light the fireworks and I got to go out on the pier with dad and light them off.

    Dad rigged a pipe on the pier aiming towards the river. In the top of the pipe he put a helicopter firework display and lit it off. I ran towards the house because the helicopter was following me. I picked up my little sister that was sitting on the bank and ran. Just then the flaming helicopter struck the back of my upper leg. I had on shorts. I was severely burned and had I not picked up my sister, it would have hit her right in the face. What went wrong? On the lighting instructions it stated warning place on flat surface, light and get away. Dad put it in a pipe upside down and lit it off. This is one of many lessons learned right at home. Please share this story.

    David Tooma
    Safety Specialist-Front St

    Life-Altering Experiences Aren’ t Always Dramatic
    I’ m on a health and wellness crusade because of a life changing experience. I was 48 (I’ ll be 50 in June 2006) and had some slightly irregular blood work results. All of a sudden, I realized if I kept treading the path I was on I was going to end up dead (like my father at age 49 - massive heart attack) or disabled like my sister at age 52 (obese, diabetes, high blood pressure, dialysis). Who would you rather be in an emergency situation with--a healthy person or one who is obese and depressed? Well, everyday is an “emergency situation.” It’ s those small things we do - like taking short cuts — that get us hurt. There is no short cut to safety or good health. Both are a conscious lifestyle based on choices we make every moment. My experience isn’ t as dramatic as the guy on the railroad track that Art Fettig describes - but that’ s a good thing.

    Faith E. Davidson

    Re-firing the Passion

    During a safety orientation I was explaining the do’ s and don’ ts of a high speed grinder. I “mentioned” the need to be sure the grinder was not turning when you laid the tool down. About a week after the orientation one of the new employees came to the nurse’ s station with a severe laceration to his arm. After several stitches and some good medical care, he was back to work. I asked him if he had listened to the speech about the grinder and he said he thought so. After that incident, I changed the whole way I conducted safety training for new hires and for the seasoned veterans. I became a safety instructor with a “fire in my belly” to get the word across so that it was not just a dry ho-hum delivery. If the instructor has the fire the employees will catch it.

    George Crosby
    If you don't do it RIGHT today, when will you have time to do it over? (Hall of Fame basketball player/coach John Wooden)

    "I may be slow, but my work is poor." Chief Dave Balding, MVFD

    "Its not Rocket Science. Just use a LITTLE imagination." (Me)

    Get it up. Get it on. Get it done!

    impossible solved cotidie. miracles postulo viginti - quattuor hora animadverto

    IACOJ member: Cheers, Play safe y'all.

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