Liability of phone conversations while my client is driving (and I am not in the car)?

Questions on how we spend our money and our time - consumer goods and services, home and vehicle, leisure and recreational activities
Gronnie
Posts: 285
Joined: Sun Oct 19, 2014 2:08 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by Gronnie »

ResearchMed wrote: Fri Oct 13, 2017 6:38 pm clip
Bottom line, for now from this particular case, from two (of three) members of a NJ Appeals Court (the third judge dissented here):

"“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” Superior Court Appellate Division Judge Victor Ashrafi wrote."
clip
This makes absolutely no sense. This is pretty much one of the main advantages of a text message, you can send a message now and the recipient can view it and respond at their convenience.
LarryAllen
Posts: 1142
Joined: Fri Apr 22, 2016 9:41 am
Location: State of Confusion

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by LarryAllen »

Pajamas wrote: Sat Oct 14, 2017 7:21 am
LarryAllen wrote: Fri Oct 13, 2017 7:52 pm However, I personally would refuse to do business with someone that wouldn't talk to me while driving.
That's very self-centered as it not only endangers yourself but also others. I hope that people just hang up on you when you insist that they be complicit in this selfish behavior.
What are you talking about? Using a hands free phone system is not considered self-centered. Texting while driving is a problem but not talking on the phone. You live in fantasyland it appears.
Spirit Rider
Posts: 13481
Joined: Fri Mar 02, 2007 2:39 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by Spirit Rider »

Gronnie wrote: Sat Oct 14, 2017 5:46 pm
ResearchMed wrote: Fri Oct 13, 2017 6:38 pm clip
Bottom line, for now from this particular case, from two (of three) members of a NJ Appeals Court (the third judge dissented here):

"“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” Superior Court Appellate Division Judge Victor Ashrafi wrote."
clip
This makes absolutely no sense. This is pretty much one of the main advantages of a text message, you can send a message now and the recipient can view it and respond at their convenience.
Not to mention, you can now do hands-free text message reading and replying. I haven't checked to see if their are any studies yet on this, but I would think it is far less distracting to a driver than hands-free talking while driving
HoosierJim
Posts: 772
Joined: Wed Mar 24, 2010 7:11 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by HoosierJim »

Spirit Rider wrote: Sun Oct 15, 2017 12:07 am Not to mention, you can now do hands-free text message reading and replying. I haven't checked to see if their are any studies yet on this, but I would think it is far less distracting to a driver than hands-free talking while driving
Anybody that thinks they can do this well and remain safe should try being a pedestrian or bike rider for a week - then report back here.
sixty40
Posts: 288
Joined: Sat Dec 06, 2014 11:53 am

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by sixty40 »

IMO, dealing in absolutes is never a good thing. You have every right to not take business from a client that is doing something you think is dangerous to them and others. To what level does this go? What if they had a felony or misdemeanor, is that acceptable? Convicted of drunk driving or driving under substance, child abuse, spousal abuse, stealing, using marijuana or other drugs (the war on drugs kills many, cartels), etc. What has any one of us done that others may not like or agree with.

In CA it is legal to speak while driving if conversing hands-free. I have done it and will do it as long as I feel it is safe to do so.

What if you are a passenger in a car and the driving (friend, family member, Uber driver, etc.), legally talks to someone on the phone, will you unfriend him, do not invite them to the next family event, disown them if they do not stop this action?

If I was a good friend of yours (or family member), someone you can respect, good citizen, good client that pays on time and gives you reasonable deadlines, charitable giving caring person, etc. and the only thing I do that you do not agree with is that I talk legally while driving sometimes when I think it is safe. Will you deny me as a client?

I do not mean any disrespect to your morals, you have every right to feel what you feel. I hope it is in consideration in the bigger scheme of things.
dbr
Posts: 33842
Joined: Sun Mar 04, 2007 9:50 am

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by dbr »

Spirit Rider wrote: Sun Oct 15, 2017 12:07 am
Gronnie wrote: Sat Oct 14, 2017 5:46 pm
ResearchMed wrote: Fri Oct 13, 2017 6:38 pm clip
Bottom line, for now from this particular case, from two (of three) members of a NJ Appeals Court (the third judge dissented here):

"“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” Superior Court Appellate Division Judge Victor Ashrafi wrote."
clip
This makes absolutely no sense. This is pretty much one of the main advantages of a text message, you can send a message now and the recipient can view it and respond at their convenience.
Not to mention, you can now do hands-free text message reading and replying. I haven't checked to see if their are any studies yet on this, but I would think it is far less distracting to a driver than hands-free talking while driving
I recall one or two studies that I can't reference at the moment finding that hands free talking on phones is every bit as distracting as holding the phone. I don't know the situation with talking to or listening to voice activated nav systems, etc. Probably texting would be worse.

It might also be shown that carrying on conversations with passengers in the car is distracting as is trying to load a CD, light a cigarette, eat and drink, etc. I had a car totaled in a rear end accident by a twinkie-in-the-mouth stuffing distracted driver who didn't even slow down for a traffic tie up. Yes, I saw that driver actually biting a cake, roll, or muffin as the distance between their front bumper and my rear bumper decreased at a rate of about 30mph.

In high school a friend of mine got out of a traffic citation following an accident on the excuse he was being buzzed by a bee in the car at the time.
User avatar
VictoriaF
Posts: 19431
Joined: Tue Feb 27, 2007 7:27 am
Location: Black Swan Lake

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by VictoriaF »

Hi Sotirios,

After reading the entire thread, I'd like to offer some summary comments:
1. You may be held liable, or at least, someone may attempt to sue you. Being a doctor, you have higher risk of being sued than most others.
2. Being a cognitive expert, you risk being discredited even if you don't lose a law suit.
3. A contract provision is a good approach.
4. You also must think through how you will determine that your client is violating the contract provision of not using a phone while driving. You may hear road sounds and the client would lie to you that he is a passenger.
5. If you do have a contract, don't make any exceptions.
6. If you catch a client talking while driving, one option is to drop the call immediately without any explanation. This appears more cowardly than standing your ground, but arguing with a client while he is driving would antagonize him.
7. You will lose some clients, similar to some Bogleheads posters who object to your concerns. But you will also gain authority by going on record with the stand you take. Write a contract, enforce it, and then write articles and blog posts on how it works. You will lose some people and gain others.

Good luck!

Victoria
WINNER of the 2015 Boglehead Contest. | Every joke has a bit of a joke. ... The rest is the truth. (Marat F)
User avatar
Topic Author
neurosphere
Posts: 3785
Joined: Sun Jan 17, 2010 1:55 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by neurosphere »

I thank everyone for their responses. Too many to reply to them individually, but I'll try to touch on or comment the main themes and some of the questions people had for me (as very nicely summarized by VictoriaF).

-- My main concern was not necessarily legal liability, although it entered my mind as I was writing the post and so mentioned. I think the chance of someone pursuing a case against me is small, but appears it is a non-zero chance.
-- I appreciated those who said they would not do business with me if I had such a policy. That's totally fair. I have no problem with that.
-- I will indeed need to put this policy in writing, either in my contract, website, into email to clients, or all of the above. In that way, clients will self select if they have a problem. There will be no arguments or awkward moments if this is clear. I will not need to "deny" anyone being my client.
-- Those who state that they can have conversations in the car safely are perhaps underestimating the nature of the conversations. Image we've scheduled a one hour session and a client calls me from the car. Assume the topic is financial planning, and the client doesn't really know the difference between a stock and a bond, and an IRA and a 401k. I have to explain those concepts on the way to educating them on a recommendation for an 80/20 portfolio via a 3-fund portfolio, maxing out the 401k and using a backdoor Roth IRA. That requires some pretty focused thinking, no, if these are all new concepts? Oh, and the person had only lived in the US for 3 years, so the tax implications were all new too. Now imagine at some point there is a long pause on the other end while I'm talking and I hear "sorry, there was something going on in front of me, what were you saying?" Either they are concentrating intently on what I have to say, or on the road. Can it possibly be both?
-- The above anecdote occurred just the other day, and was the trigger for my post.
-- Victoria called me a cognitive expert. I like that! :D It's true in a sense. I will say that I did indeed read, in their entirety, the 50+ most relevant research studies related to distracted driving. I was shocked at the volume of high quality data, which ran contrary to my assumptions. The SAME DAY is when I made a vow not personally talk in the car again, nor to allow anyone driving me to do so, and not to talk to my patients/families while they are driving. Which happens often, as I make my calls from 5-7pm, which is when people tend to be out and about. In addition, many of my patient are in rural areas, where is simply more driving going on in general.
-- I was in an "adult school bus" the other day, on the highway for a field trip of sorts. The bus driver started having a conversation on the phone with her son. We were shocked, and I was so thankful when another rider immediately said "that's very dangerous and illegal". If talking on the phone is not a distraction, why is it an illegal action for those who are employed to drive others around? Would you want your child's bus driver to catch up on all his/her conversations/errands while driving?
-- Although it is indeed the other person's choice whether to decide to talk and drive, it is also equally my choice to decide to have that conversation. As long as you know that's my policy, it is your choice whether to conduct business with me. I have no problems with that whatever.
-- I admit, I have on two recent occasions answered the phone while in the car while driving around the neighborhood. After going so long without talking in the car, it was crystal clear, "observing" myself, that my driving attention suffered. I certainly just focused on the bumper in front or me, similar to being in snow storm. OR, I was only half listening to the conversation when something in the environment pulled my attention. But never never full attention to both tasks. Exactly as the research shows. I will not do that again.
-- Did I miss anything? :D :D

Thanks everyone for your comments and perspective! :beer (and no drinking and driving EITHER!). :wink:
User avatar
Topic Author
neurosphere
Posts: 3785
Joined: Sun Jan 17, 2010 1:55 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by neurosphere »

VictoriaF wrote: Sun Oct 15, 2017 12:48 pm You also must think through how you will determine that your client is violating the contract provision of not using a phone while driving. You may hear road sounds and the client would lie to you that he is a passenger.
Well, I wouldn't think it's up to me to "prove" anything. If my policy is that you are not to call me while driving. I think that would be enough for me. There is a limit to everything. But I guess if it was clear the client was driving, Hmm, not sure what I'd do. I would probably get off the phone.

Write a contract, enforce it, and then write articles and blog posts on how it works.
Not a bad idea. A blog post may be a good place to elaborate or explain the issue in general. I can summarize the policy and direct folks to the post in an introductory or follow-up email, so that hopefully the first time people learn about the policy is upon reviewing the contract (which I know for certain many people don't read).
User avatar
whodidntante
Posts: 9115
Joined: Thu Jan 21, 2016 11:11 pm
Location: outside the echo chamber

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by whodidntante »

If you may have caused or may have been at-fault in a collision there is the potential that you will be sued or charged with a crime. Being on the phone wouldn't help your case. The risk may be low but it isn't zero. Also, talking to your friend or SO would require less concentration than some work related conversations might, so those calls might not be possible. It's a judgement call (wakka wakka).
User avatar
Pajamas
Posts: 6015
Joined: Sun Jun 03, 2012 6:32 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by Pajamas »

HornedToad wrote: Sat Oct 14, 2017 11:30 am
Only on Bogleheads is following the law considered selfish behavior.
Many things that are not illegal are selfish. Most people place constraints or limits on their behavior other than the law.
Xpe
Posts: 135
Joined: Wed Sep 17, 2014 7:24 am

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by Xpe »

I think most people here have been of the view that you would not be liable. One thing you could do is just, every time you find out they're driving, just say 'i would prefer to talk to you at another time when youre not driving, is that ok?' and if they say no lets talk now, then you're off the hook. you tried.
User avatar
ResearchMed
Posts: 10683
Joined: Fri Dec 26, 2008 11:25 pm

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by ResearchMed »

Xpe wrote: Mon Oct 16, 2017 8:13 am I think most people here have been of the view that you would not be liable. One thing you could do is just, every time you find out they're driving, just say 'i would prefer to talk to you at another time when youre not driving, is that ok?' and if they say no lets talk now, then you're off the hook. you tried.
It won't matter what "most people here" think about whether there would be liability.

And it also doesn't matter what the law (or legal precedent) currently holds, IF someone decides to sue OP (or someone similarly situated).
At a minimum, they'd still need to defend, which could add up financially (another argument for sufficient umbrella insurance, both personal and professional/commercial if relevant).

Given the few quotes from actual court cases to date, it's not too much of a longshot that sooner or later some hungry attorney would try more of the same. (And then there is always the "first time" with some novel legal approach.)

I'd also wonder if the client, possibly distracted by traffic the phone call (e.g., "something was happening in front of me, what were you saying?") might later not remember if she/he agreed with some financial plan, or fee structure, or whatever...

If you've got this policy stated up front (and aren't starving for clients), then just remind the client, suggest speaking later, and bid them adieu... temporarily or longer term.

RM
This signature is a placebo. You are in the control group.
staythecourse
Posts: 6993
Joined: Mon Jan 03, 2011 9:40 am

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by staythecourse »

neurosphere wrote: Fri Oct 13, 2017 5:34 pm Will I lose clients, or get bad review or just generally $&*(#@ people off if I don't accept/make calls during a time when a substantial number of people conduct business (i.e. while driving)? :confused

NS
Probably, but WHO CARES. As I tell every one of my patients a patient doctor relationship is no different then dating. As long as both sides are happy the relationship continues to grow, but if one isn't and you can't get on the same page then it ends and each go their separate ways to find someone else.

I am not sure why doctors are so insecure about laying down the law. Who cares if they leave. Just have the confidence you are adding a premium to your patients lives that they will want to continue with you. I have lost some folks, but can tell you human psychology is interesting. The more you put your foot down the less folks take advantage and/ or leave. Your request is reasonable and stand by it otherwise you would be quite the hypocrite to let one side "get away with it" and another group not.

Good luck.
"The stock market [fluctuation], therefore, is noise. A giant distraction from the business of investing.” | -Jack Bogle
barnaclebob
Posts: 4215
Joined: Thu Aug 09, 2012 10:54 am

Re: Liability of phone conversations while my client is driving (and I am not in the car)?

Post by barnaclebob »

Just fake that you can't hear them and say you have full signal so it must be their connection.
Post Reply