IEEE Technology and Society Magazine - Winter 2014 - 70

prior claims as well as the excessive temperature at which coffee
was served, awarded the plaintiff
$200,000 in compensatory damages and $2.7 million in punitive
damages [11]. Although the court
reduced the award significantly and
the parties entered into a confidential settlement, it was hardly a positive experience for the defendant.
Risk transfer may also be
accomplished by way of a contract

Risk Reduction
In risk reduction, an employer
attempts to mitigate a risk by
reducing the likelihood and/or the
consequence of a loss [28]. By
taking actions to mitigate risk, an
employer can minimize not only
direct risks of a crash and lawsuit, but also the indirect risk of
employee disability and lost workdays if an employee sustains injury
in a crash.

An employer should educate its
employees about the risk of cell
phone use while driving.
rather than insurance. A common
method of transferring risk by way
of contract is through an exculpatory clause, which releases one
party from liability in the event of
a monetary loss or physical injury.
Such clauses are not unusual.
Sporting events, such as baseball
games, are arguably the most common example. Due to the countless
dangers of foul balls and broken
bats, fans hit and injured by such
items are usually unable to sue for
the injuries.
In other situations, a court may
or may not enforce an exculpatory
clause. In the context of an attempt
by an employer to shift liability to
an employee, a court is unlikely to
enforce such a contract as a violation of public policy (e.g., see [27]).
Thus, an attempt by an employer
to avoid workers' compensation
liability for an injured employee,
by way of a contract, is unlikely
to be enforced by a court. Likewise, an attempt by an employer to
shift liability to an employee, and
away from the employer, for an
accident caused by an employee's
cell phone usage is unlikely to be
enforceable in court. The reason
is simple. A contract such as this
may leave an injured third party
without a remedy, or with only a
limited remedy.
70

An organization that wishes to
avoid, or at least minimize risk, will
employ several approaches. First,
organizations that provide a company vehicle and allow employees
to drive the vehicles, or that reimburse employees for mileage on
an employees' personal vehicle,
ordinarily request a driving-history
report from the appropriate state's
department of motor vehicles for
the specific employee. For instance,
in California such reports are available for a period of five or ten years.
In the past the major concern may
have been issues regarding driving
while intoxicated, but that is no longer the case. Employers are encouraged to review the driving histories
of their employees in order to provide evidence of a variety of any
previous driving citations. These
issues include cell phone use while
driving, particularly if an employee
is ticketed for such an offense. An
employer that fails to follow such
an approach may face a lawsuit for
negligent hiring.
In addition to requesting a
record from the state's department
of motor vehicles upon the initial
hiring of an employee, an employer
should regularly request an updated
report from all relevant employees. An employer that fails to do
so may face a claim for negligent

retention. That is, an employer that
knew or should have known about
an employee's questionable driving
history, yet fails to discipline (or
terminate in the appropriate situation) such an employee, may be
sued for negligent retention.
Third, an employer should also
educate its employees about the
risk of cell phone use while driving.
Useful education can be embedded
in the employees' driver safety
training, which many employers
already require for employees. An
employer can keep the training up
to date by incorporating the latest
safety research results in the training curriculum. "The obvious way
to reduce distracted driving is to
convince or require drivers to pay
attention to their driving. Behavioral strategies to reduce distracted
driving include attempting to
remove underlying causes and promoting awareness of the risks" [15,
p. 18]. An organization is responsible for informing employees that
they are not to make or receive
calls on a cell phone while driving.
This formality can be relayed to the
workers through employee handbooks or other relevant documents.
It is arguable that an organization
should limit such restriction to situations where the employee is on
the job, although such a restriction
should not be too limited.
Lastly, an employer can use a
technology-based approach to mitigate the risk [20]. Apps exist to prevent a device from being used while
the device is in motion [21]. These
apps commonly use the phone's
GPS capability to calculate the
speed at which the device moves. If
the speed is greater than some level,
then the phone is locked. A solution/app may be configured to make
exceptions for an emergency [19].

Risk Retention
Although the safety of employees and
the avoidance of costly litigations are
essential, the disadvantage of a blanket
ban on cell phone use while driving
is the inability of businesses to reap

IEEE TECHNOLOGY AND SOCIETY MAGAZINE

WINTER 2014

Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - Winter 2014