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N.H. Bans Hand-Held Electronics Behind The Wheel, Reflecting Nationwide Proliferation Of “Distracted Driving” Laws

[October 9, 2014] Businesses whose employees drive in New Hampshire may be liable for accidents resulting from texting with, talking on, and otherwise using hand-held electronic devices behind the wheel. This is the upshot of a new state law, House Bill 1360, which expands New Hampshire’s prohibition on texting while driving to cover virtually all non-emergency uses of a hand-held electronic device. The new law goes into effect July 1, 2015.

This development reflects a dramatic recent rise in “distracted driving” laws in New England and elsewhere. For instance, forty-three states and the District of Columbia now ban texting while driving, and twelve states and the District of Columbia now prohibit all drivers from using hand-held cell phones. For employers, this means that potential vicarious liability for distracted driving accidents exists on essentially a nationwide basis.

In light of this risk, employers should take stock of the distracted driving laws in the states where they do business and ensure that their policies and actual practices strictly prohibit all unlawful uses of electronic devices while driving on company time (and while engaging in company business, such as conference calls, while commuting or otherwise driving outside of normal business hours).

House Bill 1360

The New Hampshire law prohibits the use of any hand-held mobile device while driving or temporarily halted in traffic. “Use” is defined broadly and includes, but is not limited to: “reading, composing, viewing, or posting any electronic message; or initiating, receiving, or conducting a conversation; or initiating a command or request to access the Internet; or inputting information into a global positioning system or navigation device; or manually typing data into any other portable electronic device.”

Under the law, adult drivers are permitted to (i) use a hand-held device to call 911, a law enforcement agency, a fire department, or an emergency medical provider; (ii) use one hand to transmit or receive messages on any non-cellular two-way radio; and (iii) use hands-free devices while driving, “provided the driver does not have to divert his or her attention from the road ahead.” Minors, however, are prohibited from any use of a cell phone while driving, even hands-free, except to call 911.

Violators will be fined $100 plus penalty assessment for a first offense; $250 plus penalty assessment for a second offense; and $500 plus penalty assessment for any subsequent offense within a 24-month period. Minors violating the statute also will be subject to license suspension or revocation.

Liability Risks For Employers

Significantly, the risks of such laws for employers and their employees far exceed the relatively modest fines that may be assessed for violations. In most, if not all, states, when a person violates a statute without an adequate excuse and causes the harm that the statute was created to prevent, the violation is considered to be “negligence per se.” Thus, when violations of distracted driving laws result in accidents causing personal injury or property damage, the driver could be held automatically liable if the injured party sues.

This, in turn, means that when the driver’s violation involved using the electronic device for work-related purposes, the employer may be vicariously liable for the resulting harm. To illustrate, vicarious liability could arise from accidents occurring when the employee was engaged in a work-related conference call while commuting to the office; typing an address into a navigation device while making a delivery; or text messaging with a manager, co-worker, or client while driving to a company function.

In lawsuits seeking to hold employers vicariously liable, the defense ideally would be able to show that the employer had policies against the offending conduct; provided employee-drivers with adequate notice of the policies and corresponding training; and strictly enforced the policies as a matter of practice. Even with such safeguards, though, evidence that an employer “turned a blind eye” to distracted driving could be difficult to overcome, heightening the need for training and compliance at all levels of the organization.

Recommendations For Employers

In light of the nationwide emergence of distracted driving laws, and the potential for vicarious liability when violations result in traffic accidents, we recommend that employers operating in New Hampshire and elsewhere:

      • Review the distracted driving laws in the states where they operate to gain a clear understanding of what is and what is not permissible;
      • Review and, as necessary, revise company policies to ensure compliance with all such applicable laws;
      • Provide employees with notice and periodic training in the appropriate – and prohibited – uses of cell phones, navigation devices, and other electronic devices while on the road;
      • Implement measures to strictly and consistently enforce these policies to ensure that they reflect actual company practice; and
      • Continue to monitor developments in this area of the law and, in turn, to update policies and practices as necessary.

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Please contact us if you have any questions about the distracted driving laws of New Hampshire or any other state. We regularly counsel employers on such matters and would welcome the opportunity to assist you.