Zombie apocalypse: why businesses face liability from distracted walkers

Smartphone zombies (i.e. pedestrians who use their phone while walking) aren’t just hazardous to themselves; this phenomenon also poses a major risk for insured businesses.

People have become increasingly dependent on their devices, even going so far as to scroll, text or shuffle music while they walk. This can increase a person’s risk of tripping, bumping into another pedestrian, or walking into traffic distractedly.

If they’re found liable, retail, public sector and commercial fleet companies may find themselves unprotected for the severity of this risk, speakers shared at the RIMS Canada Conference in Ottawa.

“By failing to take reasonable measures to prevent their own injury, there’s increased pressure on you to contain and to create safe environments for anything that’s open to the public,” said Lisa O’Brien, vice president, regional liability manager for Zurich Canada. 

Using a cellphone while walking produces a significant decrease in gait speed, stride length, and an unpredictable or slower cadence, according to one study.

Distracted walking raises the issue of contributory negligence — i.e., whether an injured plaintiff might be found to have contributed to their own injury through negligence.

“There’s definitely been some claims where somebody has tripped and has had an injury, and there’s video footage of them looking at their phone,” Paul Gallately, middle markets & liability lead for Zurich Resilience Solutions at Zurich Canada explained.

“And, of course, the [defendant company says] ‘Well, they weren’t paying attention, it can’t be our fault,’ except the decision was ‘Well, if the hazard didn’t exist in the first place, then they wouldn’t have fallen regardless of whether they were looking at their phone.”

But the more extreme exposure for businesses isn’t in trip-and-fall related claims, it’s with vehicle collisions.

“If [you are a fleet driver and] are involved in a collision and you hit a pedestrian, or you were distracted, you’re held to a higher degree of responsibility,” Gallately said.

As distracted walking claims increase in frequency, vehicle and public safety are of the most importance, speakers shared.

For example, minimum maintenance standards in Ontario set out a businesses’ responsibility and expected timeline for repair when a safety concern is discovered.

Businesses can start to protect themselves by identifying the high hazard areas around their property.

“Whether you’re in Ontario, or you’re in any other province or territory in Canada, you have to have the documentation to show that you maintained your facilities to a level that was deemed to be safe for what would be reasonable,” Robin McCleave, vice president, public sector national practice leader at BFL CANADA Risk & Insurance Services Inc.

“You also have to look at your own organization, and what policies and procedures are in place for inspecting your sidewalks, inspecting your facilities, looking for trip hazards,” she said. “How would you fix them? What are your timelines are your staff training?”

“If something goes wrong, that’s the first thing you’re going to be [asked] for.”

Businesses’ key areas of exposure could include: public buildings and areas with high pedestrian volume, identified hazardous areas, construction sites, intersections, crosswalks and roads.

Businesses should also be aware of whether tripping hazards like rugs, unassuming steps or uneven elevations are marked clearly for people.

For vehicle collision risk, strengthening driver safety training and behaviour is key.

Plus, municipalities should take a ‘Vision Zero’ approach to traffic safety. Essentially, Vision Zero is a safety approach that looks to enhance road systems, like staggering pedestrian stops, or increasing the length of time for street crossings, to eliminate the potential for pedestrian injury.

“It really just becomes [a question of], ‘are we protecting the vulnerable sector?’” Gallately posed.

Feature image by iStock.com/gremlin