As cell phones become more integrated into our work
lives and the pressure to do business "24/7" increases, employers
are more likely to be implicated in lawsuits where their employees
were involved in car accidents while talking on a cell phone. There
are two theories behind these kinds of lawsuits. First, as the
employee-driver is acting in the interest of the employer, the
employer benefits from the cell phone conversation and is therefore
liable for that conduct. Second, that an employer could be liable
for permitting employees to use cell phones without first providing
proper training or adopting appropriate cell phone use policies.
Whether fair or not, as in other areas of personal injury law,
plaintiffs will go after the deepest pockets they can find,
including naming multiple defendants in lawsuits. Ergo, the
employer.
In a recent study, the Harvard Center for Risk
Analysis found that cell phone talking drivers are responsible for
about 6 percent of U.S. car accidents each year, resulting in 2,600
deaths and 330,000 injuries. And the damages in these kinds of
lawsuits can be staggering. For example:
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In 1999, Smith Barney agreed to pay $500,000 to
settle a fatal auto accident claim in Pennsylvania involving one
of its salesmen. He dropped his cell phone while driving and, as
he groped for it, ran a red light and killed a 24-year-old man
on a motorcycle. The stockbroker had tried to make a sales call
or two before arriving at a restaurant for dinner.
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In 2000, a lawyer struck and killed a teenage
girl in Virginia. The attorney, who was returning from a work
meeting, was allegedly talking on her cell phone with a client
at the time of the accident. The deceased's family filed a $30
million lawsuit against the employer. The jury trial will begin
in the Loudoun County Circuit Court on October 4, 2004.
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In 2001, a Miami jury found an Arkansas lumber
company liable for more than $20 million in damages after the
plaintiff was injured in an auto accident caused by a salesman
making a cell phone call between appointments. The insurer for
the salesman's employer picked up the settled final tab: $16
million on behalf of the company and $100,000 for its salesman.
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Also in 2001, an appeals court ordered the State
of Hawaii to pay $1.5 million in damages after a state teacher,
who had just completed a cell phone call, struck a pedestrian
while driving to work.
New York became the first state (in 2001) to ban
the use of hand-held cell phones while driving. New Jersey
adopted a similar law this year. At least 18 states and the
District of Columbia have passed cell phone laws, and at some
point over the past three years, every state has considered
adopting cell phone laws. According to the National Conference
of State Legislatures, 42 states considered 116 bills related to
cell phones and driving safety in 2003.
What Should Employers Do?
While there is no guaranteed defense to
liability, there are steps that employers can take to limit
their liability. Each company should determine whether the
benefits of employee cell phone use outweigh the risks. Some
examples of cell phone use policies include:
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Completely banning cell phone use while
driving.
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Requiring employees to use hands-free
devices while driving.
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Directing employees to comply with all
applicable state and local laws governing cell phone use.
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Requiring employees to pull over to take
phone calls.
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Instructing employees to avoid or terminate
phone calls involving stressful or emotional conversations.
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Limiting the scope of certain employees' job
descriptions so that it is clear that their positions do not
include using cell phones while driving.
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Prohibiting cell phone use in adverse
weather or difficult traffic conditions.
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Restricting driver cell phone use to brief
conversations.
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Emphasizing the importance of safety while
taking phone calls on the road. Cell phone use policies
should also be included in employee handbooks, if one is
used.
Regardless of the policy you adopt, be sure to
educate your employees about the dangers of talking on a cell
phone while driving. Also, double-check your insurance coverage.
Training employees how to use cell phones safely, and imposing
penalties for failing to do so, can go a long way to protecting
your company from lawsuits and to enhancing public safety.
