Driven to distraction?
Employers can be liable for employees’ cell phone use.
October 30, 2015 By CNA Financial
A University of North Carolina Highway Safety Research Center study found an estimated 284,000 distracted drivers are involved in serious vehicle accidents every year. One of the contributing factors is cell phone use.
More than 80 percent of the 94 million cell phone owners in the United States use their phones while driving, at least sometimes. Many states have legislation to regulate cell phone use in moving vehicles. At least 13 nations, including England, Germany and Japan, have banned the use of cell phones in cars.
In the past few years, cell phone usage has been an issue in several lawsuits, and employers are being held responsible if a worker causes an accident while talking on the phone. Cell phone usage is a distraction while driving, like a lot of other things. So why are employers worried? Cell phone records can be subpoenaed to prove the employee was on the phone. Other distractions cannot be identified down to a specific time, and many drivers don’t want to say they were distracted and not driving safely.
Here are several examples of liability cases against employers resulting from cell phone use by employees:
In 2000, a lawyer struck and killed a teenaged 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. In October 2004, the jury awarded $2 million in damages to the girl’s family. The plaintiff’s lawyer filed suits against both the driver and the driver’s employer after an examination of phone records revealed that the driver had been talking to a client when she hit the girl.
The driver was also convicted of criminal charges and sent to prison for two months for punitive and compensatory damages. In his suit against the employer, the plaintiff’s lawyer argued the case on the grounds of common law negligence, since the employer required drivers to be available to clients via cell phone and use their driving time productively, and that an employer is responsible for bad acts committed by an employee on the job.
The suit against the employer was settled for an undisclosed amount.
There are other examples too. In December 2001 a Miami jury awarded $21 million to a woman who was hit and severely injured by a lumber industries salesman while he was on his cell phone. That same year, 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.
Employer liability in these types of cases is based on a legal doctrine called respondeat superior. Under this doctrine, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred. In addition to arguing that an employer is liable for the harm caused by one of its employees, some plaintiffs have argued that the employer is directly liable for its own negligent conduct in failing to provide adequate training or instructions on safe cell phone use, or failing to restrict usage.
With the risk of employer liability associated with employee use of cell phones while driving, society’s growing dependence on cell phones, and the new laws restricting cell phone use while driving, it is time for employers to consider adopting or adapting comprehensive policies and practices concerning employee cell phone use. Considerations include adopting cell phone policies prohibiting employees from using cell phones while driving for business purposes and while driving to and from work. The restrictions should include the use of hands-free headsets, (cell phone distraction involves all types of driver distractions: visual, manual and cognitive) since studies indicate it’s the conversation (cognitive) not the physical act of holding the phone that contributes to accidents.
While there is no guaranteed defense to liability, developing appropriate policies, training and enforcement mechanisms can help limit potential liability.
The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice.
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