> By MIKE TIERNEY
The Atlanta Journal-Constitution
Published on: 02/28/05

The pair were strangers when they pulled out of the school parking lot that morning in mid-May. Jimmy Smith and Matthew Steinmetz had eaten doughnuts at a father-son breakfast before class; now they were headed to work.

Two miles down the road, on Ga. 141 in Forsyth County, Smith's green Volvo stopped to turn left. Behind him, in a white Chevy pickup, Steinmetz did not notice. He had reached over to a mounted, hands-free cellphone and begun punching *99 to retrieve a message.

When his pickup slammed into the stationary sedan, it set off a chain reaction crash that left Smith badly injured. Since the 2002 crash, he has required six surgeries and might need more.

Smith later sued Steinmetz as well as his employer, Beers Skanska construction. Four days into the trial last November in Fulton County Superior Court, the parties agreed to a $5 million settlement for Smith — with $4.75 million coming from Beers Skanska.

"The cellphone was a tool provided by the company," maintained Grant Morain, Smith's chief lawyer, who introduced evidence that Steinmetz probably was returning a work-related call.

The big-dollar settlement might serve as a warning to corporate America, where companies seeking to boost productivity have for a decade armed employees with mobile phones and other wireless communication aids. American motorists log about a billion minutes daily in calls, about 40 percent of all cellphone business.

But with greater awareness of the risks of cellphone use behind the wheel, the same firms requiring workers to be available around the clock are looking for ways to curb liability if the employees use the devices in risky ways.

No talking while driving

Some companies now stipulate that workers adopt headsets or mounted phones. Others, especially those with deep pockets that are potential targets of lawsuits, have assigned written safety policies for driving and dialing.

A few have gone further. In June, Exxon Mobil became the most recognized international company to ban employees from accepting or placing calls while driving. It dictates that phones contain a call-forward feature — a voicemail message advising callers that the Exxon worker is busy at the wheel.

Among metro Atlanta companies, UPS refrains from providing drivers with phones and forbids them from talking on their own while steering. BellSouth, which has a 40 percent stake in Atlanta-based wireless phone giant Cingular, grants a limited number of phones and tells employees to stick to hands-free while on the road.

Delta Air Lines distributes phones to some employees, but does not provide guidelines regarding use while driving.

Legal expert Perry Binder says companies are still figuring how to balance productivity and liability.

"The best policy is that no one is allowed to use it while [driving] on company time — which would be the death knell of business as we know it," said Binder, a professor at Georgia State University's Robinson College of Business.

The precedent for company liability dates to at least 1999, according to research by the National Conference of State Legislatures. The investment firm Smith Barney furnished $500,000 to the family of a motorcyclist killed by a broker who was placing a sales call on his personal phone when the accident occurred.

An Arkansas lumber company settled for $16.2 million with a woman who was struck and disabled by an on-duty salesman on the phone. The state of Hawaii paid $1.5 million to a pedestrian hit and injured by a teacher wrapping up a call.

States make rules

Only New York, New Jersey and Washington, D.C., have passed major legislation directed at multitasking drivers. In each case, the prohibition is confined to hand-held phones.

Some states have taken limited action, such as forbidding cellphone use in a school zone. A dozen others, including Georgia, are weighing restrictions for drivers 18 and younger.

AAA attributes 330,000 highway injuries annually to the devices.

The National Highway Traffic Safety Administration asserts that headsets and speakerphones are no less dangerous than hand-held. It regards conversing, not dialing or holding a phone, as the risky task.

Talking on a cellphone "requires more intellectual energy," attorney Morain said. "It doesn't matter whether you are holding it to your ear."

A recent test by University of Utah researchers determined that motorists on the blood-alcohol threshold of legally drunk drive better than sober cellphone-chatters.

Before Exxon enacted its hang-up-and-drive policy, the oil giant assigned its own scientists to evaluate the matter. Among the nine studies they cited in recommending the ban was one in which braking response time for cellphone talkers was found to be three times longer than for drunken drivers.

'Easy answer' elusive

Skanska, which bought Atlanta construction company Beers in 1994, still has no cellphone policy for its personnel — nearly three years after the crash that cost it almost $5 million. A spokeswoman said the company, prompted by the wave of cellphone dependency and not by the lawsuit, is developing guidelines.

Skanska declined direct comment on the settlement, instead releasing a statement that expressed concern for Smith and his family and added: "The question of liability in this case is clearly one without an easy answer."

In court, the company was more adamant. It contended Steinmetz was commuting to his job in downtown Atlanta and, in essence, was not on the clock.

Skanska also argued that it should not be held responsible for driver negligence. Steinmetz, of Alpharetta, escaped injury but was ticketed for following too closely.

"With the presence of millions of [cellphones] in automobiles, the increase in liability on an employee's conduct would be astronomical," the company's lawyers submitted in a brief.

The theory, they added, could be extended to include car radios, CD players, map-reading, smoking, drinking and eating.

Legislation, education

AAA and NHTSA are among driver-safety organizations that campaign for curbing all forms of mobile phoning, whether by law or common sense. The Cellular Telecommunications & Internet Association, a lobbying group for the wireless communications industry, presses for education over legislation.

Legal expert Binder urges companies to make rules and keep reminding workers about them. Doing so can lighten potential liability, though not eliminate it, he said.

A one-time e-mailed message to workers may not suffice. "Did the employer do everything possible to avoid accidents? Companies have to educate on a constant basis," Binder said.

Smith, a Suwanee resident who was 42 at the time of his crash, resigned from his vice president's job in software development because the injuries kept him from traveling.

Steinmetz's truck was traveling an estimated 45 mph when it hit the Volvo, which was shoved into oncoming traffic and collided with another pickup. Rescuers had to slice off the roof to free Smith, who was hospitalized with serious lower-body injuries. They overlooked a bone fragment from his ankle that Smith's friends later found on the floorboard.

His attorney, Morain, says Smith's mobility is "severely impaired" — ironically, in large part, because of an instrument that increases mobility.

Morain took home a lesson along with a substantial commission from the settlement. When the cellphone rings while he is piloting his car through metro Atlanta traffic, he pulls over to the side of the road.