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On October 16, 2017, a truck crashed into the back of a Harley-Davidson on Interstate 81 in Cumberland County. John Baum, Jr., the motorcycle rider, died as a result. For his part, the truck driver was sentenced to up to two years in prison for involuntary manslaughter. The reason for the crash? The driver was watching a football game – on his phone – while driving.[1] Though tragic, this accident is not unique.
In 2017, over three thousand people were killed in motor vehicle accidents caused by distracted driving[2]. Including all injuries, the number increased to almost four hundred thousand.[3] This is a serious problem. Cell phones are everywhere, and a large portion of Pennsylvania’s workforce is comprised of traveling employees. Combine the two and Pennsylvania employers, and their insurers, face significant exposure from motor vehicle accidents caused by distracted driving. That said, there are steps employers can take, and defenses they can raise, to limit their exposure in the workers’ compensation arena.
In Pennsylvania, violation of a positive work order is an affirmative defense to a work injury. In order to establish same, the employer must prove that (1) the injury was, in fact, caused by violation of the rule, (2) the employee actually knew of the rule, and (3) the rule implicated an activity not connected with the employee’s work duties.[4] In order to properly assert this defense against distracted driving, not to mention protect the workforce, employers should ban the use of all hand-held phones while operating a motor vehicle. The rule should be included in employee handbooks and prominently displayed throughout the place of employment. Employers should obtain acknowledgement from their employees, in writing, and last, but not least, they must enforce the rule to ensure compliance. The analysis in these cases is very fact specific. Nonetheless, this may prove to be the best defense available to work injuries caused by distracted driving.
In addition, employers and their insurers should also consider violation of law. This is another affirmative defense to compensation. When an injury in Pennsylvania is caused by the employee’s violation of law, compensation is not payable.[5] If the violation is only a summary offense, however, compensation is generally not barred.[6] To be sure, in Pennsylvania, distracted driving is considered a summary offense that carries a $50.00 fine.[7] All is not lost. While the violation of law defense generally applies to felonies and misdemeanors, Pennsylvania has not adopted a hardline position that the defense only applies to felonies and misdemeanors. On the contrary, this defense can apply to summary offenses if that offense is a material element of another felony or misdemeanor.[8] This is another fact-intensive analysis, and one that brings into play criminal proceedings, but you need look no further than the unfortunate death of Mr. Baum for an example of when this defense would apply.
There are a number of other considerations that employers and their insurers face when dealing with a motor vehicle accident caused by distracted driving. From subrogation to civil liability, employers must be proactive and thorough when defending these claims. With that in mind, there are affirmative defenses available in the workers’ compensation arena: violation of a positive work order and violation of law. Employers should consider both whenever they face an injury to one of their employees caused by distracted driving.
