Employees-Cell Phone Use and Their Employers Exposure To Litigation

by Internet Marketing Houston on October 1, 2012

The use of cell phones has become almost universal, with almost 6 billion cell phone subscriptions worldwide as of 2011.
In the United States alone, there are currently 331.6 million wireless subscribers.  While cell phones have forever changed the way we live and work, they have also increased the hazards
we face on a daily basis.  According to The National Safety Council estimates, nearly 1.6 million traffic accidents each year involve the use of cell phones.   Over three-fourths of drivers said they would be willing to answer their cell phone while driving and that traffic conditions generally do not play a role in their decision to answer a call.  In a survey of teenagers, 40% of those surveyed stated that they have been in a vehicle with another driver where the driver was using a cell phone in a manner that they felt put them in danger.  All of these statistics become even more startling when combined with results of a study that shows that when a driver is using a cell phone, there is a 37% reduction of brain activity that is devoted to the task of driving.

Additionally, the increase of cell phone users communicating with text messages has further increased the risk of collision while driving.  In June 2010,
over 196 billion text messages were sent and received within the United States and the amount is continually growing.  A driver that is actively using text messaging is 23 times more likely to cause a
car accident than a driver who is not distracted.  In fact, sending or receiving a text message requires that a driver averts his eyes away from the road for approximately 4.6 seconds.  At 55 mph, that is the equivalent of driving the length of an entire football field without the driver having their eyes on the road.

These statistics are most alarming for employers whose employees use cell phones while they are driving.  Under the theory of respondeat superior, employers can be held legally liable for the
actions of their employees.  Respondeat superior is a type of liability where a party who was not present at the scene of the wrongdoing nor personally committed the wrongdoing can still be held legally responsible.  Employer can be held legally liable if the employee committed the wrongdoing while acting within the course and scope of employment.  While “within the course and scope of employment” may seem like an extremely definite period of time, federaland state courts, unfortunately, do not agree.

For example, an employee who stops to purchase a cup of coffee in between business meetings can be considered to be “within the course and scope of employment”, thus potentially making the employer liable.

It seems clear that an employer should be held liable when an employee causes a collision while driving a company-owned vehicle and using a company-provided cell phone to contact the employer’s main office, but that is not the only scenario where an employer can be held liable. There have been cases in which an employer has been held liable or voluntarily paid a settlement when their
employee was in their personally-owned vehicle, talking on a personally-owned cell phone, and their ultimate destination was a non-employer function.  This goes to show how far-reaching courts
have interpreted “within the course and scope of employment.”

There have been many cases in which an employer, either large or small, has been sued for the injuries and deaths their employees have caused while using a cell phone. In 2008, a Missouri
commercial transportation company’s employee was checking his phone while driving a tractor-trailer and failed to see stopped traffic ahead of him.  A collision involving ten vehicles ensued,
causing the total paralysis in one driver, numerous broken bones in another, and tragically, one death.  All this loss was due to one man being distracted by a cell phone, and all of it was
completely preventable.  Multiple suits followed the crash, awarding a total of $24.7 million to those injured and their families, to be paid by the employer.  Here are several examples of the successful legal actions that have resulted from injuries related to cell phone use in vehicles:

In a collision that occurred in Ohio, an employee rear-ended another vehicle while he was driving a company-owned car.  The employee struck the other vehicle with such force that the vehicle crossed the median into oncoming traffic.  One of the involved parties was announced dead at the scene of the collision.  Cell phone records showed that the employee was using her phone to speak with her husband at the time of the crash.  The victims of the collision were awarded $21.6 million.

In a 2009 crash in Maryland, an off-duty police officer was sending and receiving text messages in his police cruiser.  The officer struck another vehicle and caused the death of a college student.  Even though the police officer was off-duty and not actively conducting any police work, he was driving a police-owned vehicle. The county that employed the police officer was sued and held liable for $4 million.

In 2001, a car that was being driven by a public school teacher struck a pedestrian.  Records show that the driver of the car was talking on a cell phone at the time of the collision.  The State of
Hawaii was required to pay $1.5 million to the family of the pedestrian.

In 2006, the city of Palo Alto, California agreed to pay a settlement totaling $1.45 million after a city worker collided with another vehicle as the worker was reaching for his cellphone.  The driver of the other vehicle was left with permanent, debilitating spinal injuries.

In 2010, a Coca-Cola employee struck another leaving its driver with permanent nerve damage and injuries that prevented her from returning to work after the accident.  Coca-Cola defended that it should not be liable due to its internal company policy, which stated employees were required to use a hands-free device for their cell phone if they were conducting company business.  In response, the attorneys of the victim of the collision were able to show that Coca-Cola’s cell phone policy was too vague and ambiguous.  Coca-Cola was further found liable because it did not tell their employees exactly how distracting using a cell phone while driving can be or how many people die from auto collisions involving cell phones each year.  Ultimately, the jury awarded the driver $21 million in damages as a result of the collision.

In the Coca-Cola case, Thomas J. Henry, one of the lead attorneys for the driver stated the following:

“From the time I took the Coca-Cola
driver’s testimony and obtained the company’s inadequate cell phone driving policy, I knew we had a corporate giant with a huge safety problem on our hands. I also knew that taking on Coca Cola’s policy that affects hundreds of thousands of its employees would require assembling a trial team with the horse power necessary to fight and win. More importantly, I knew my client deserved
justice, and the rest of the motoring public deserved safer drivers…”

The attorney’s statement shows that an effective cell phone policy is not only required, it must also be strictly enforced for the employer to obtain proper protection.  More and more, juries are
deciding that it is an employer’s responsibility to protect the public from the dangers caused by their employees using cell phones while operating a vehicle.  In just these six cases, employers were
required to pay damages totaling $74.25 million dollars to the victims of accidents caused entirely by their employees.

Thus, while having a well-drafted company policy which restricts the use of cell phones is beneficial in limiting liability, policies alone are not sufficient to actually prevent employees from
using cell phones while engaging in company business or to eliminate completely any liability that employers face due to a collision caused by an employee.  Over and over, courts have imposed liability on employers even though they have a company policy which prohibits cell phone use.  More action on the part of the employer is required to reduce or eliminate liability, including rigorous
enforcement.  But as most employers know, effectively enforcing a cell phone policy can be extremely difficult for an employer that cannot monitor every employee at all times.  Fortunately, there are options.

One simple way to effectively enforce a cell phone policy is to use a device, such as SafetyPal, which would limit an employee from using a cell phone while they are operating a company-owned vehicle.  Systems such as SafetyPal, require a device to be installed in the vehicle as well as software installed on the user’s phone.  Once the user’s phone is no longer in the vehicle, it can be used without restrictions.  Employers will not be able to regulate cell phone use anywhere other than the registered vehicle.  Additionally, if an employee objects to having the software installed on their phone, they can choose not to carry a cell phone while operating a company vehicle.

Despite the advantages of such devices, some employers are worried that using a device to prevent employees from using a cell phone while in a company vehicle may raise privacy concerns or may be
outright illegal.  This is not the case.  With some limitation, it is within an employer’s right to require an employee to load software on their cell phone to limit cell phone use while the employee is operating a company-owned vehicle.  To preserve privacy and avoid any issues, however, this software may not be used to track the employee or
record conversations they have on their cell phone.

Another reason many companies are reluctant to disallow the use of cell phones for their employees is because they feel it will impede with the employee’s duties and make them less
productive.  In a survey conducted by the National Safety Council of 469 member companies who banned cell phone use by their employees, only 1% reported that productivity decreased.  In another survey of Fortune 500 companies who had implemented a total cell phone ban, only 7% reported that productivity had decreased while 19% reported that productivity had actually increased.  These studies show that banning employee’s use of cell phones is not as detrimental as it may seem and can even improve productivity.

While excellent data supports reasonable precautions by employers regarding cell phone use, safety is not only about statistics and examples.  The drivers and the victims of the accident can be people we know, perhaps even friends and family members.  In a collision that occurred in Georgia in 2007, a salesperson was driving on an interstate highway while allegedly talking on her company-supplied cell phone.  Due to the distraction, she did not notice that the traffic ahead of her had slowed and she collided with the vehicle in front of her.  The injured driver was a widow and a mother of four children.  The force of the collision caused the widow’s car to go into a ditch and roll over.  Her arm became pinned between the car and the ground, which ultimately required the arm to be amputated.  Even though it was uncertain if the salesperson was using the cell phone at the exact moment of the collision, the employer settled the case for $5.2 million.

This is yet another example of the kind of expense that an employer may face but it is also a reminder that it is not just statistics and examples.  The increasing trend to hold employers responsible for their employees distracted driving is increasing but the proactive prevention of distracted driving is not just a financially savvy thing to do by the employers but it is also the right thing to do.

Devices that restrict cell phone use can help.  While it may seem that the cost of such a device would just be another expense in a world where simply being profitable is becoming more and more difficult with every passing day, a device such as SafetyPal is extremely affordable at a cost of only $10-$13 per month.  Courts have held that simply having a cell phone policy is not enough.
Additionally, juries are holding more and more employers responsible for protecting the general public from the dangers of an employee using a cell phone while operating a vehicle.  Using a device such as SafetyPal will help reduce the liability risk that your company may face with having distracted employees drive company-owned vehicles.

Owners need both a strong cell phone policy in place as well as using technology that restricts mobile device use.  Find a link to a sample cell phone policy on our website home page: www.alanpacecompany.com

Used together, an owner can mitigate their exposure to costly  jury verdicts because an employee choose to text or talk while driving.



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