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:
- 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.
- 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.
- 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.
- 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:
- Completely banning cell phone use while driving.
- Requiring employees to use hands-free devices while driving.
- Directing employees to comply with all applicable state and local laws governing cell phone use.
- Requiring employees to pull over to take phone calls.
- Instructing employees to avoid or terminate phone calls involving stressful or emotional conversations.
- Limiting the scope of certain employees' job descriptions so that it is clear that their positions do not include using cell phones while driving.
- Prohibiting cell phone use in adverse weather or difficult traffic conditions.
- Restricting driver cell phone use to brief conversations.
- 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.
© 2004-2008 Ask The Business Lawyer LLC. Nina L. Kaufman, Esq., is a business attorney and the President of Ask The Business Lawyer LLC, which offers easy-to-understand business law resources that protect small businesses and save them money. To learn more, and receive our FREE "Words to the Wise" ezine, visit www.WiseCounselPress.com or contact Wise@AskTheBusinessLawyer.com. This article is for your general
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Q: What do you get when you cross a cell phone with a car?