Do you think an employer could be liable if one of its
employees, while driving and using a cell phone, causes an accident
and injures another party?
Over the last several years, people who have been injured in
automobile crashes in which the at-fault driver was using a cell
phone have sued the driver's employer as well as the driver,
with some surprising results. Many attorneys for injured parties
will look to the employer for the "deep pockets," or
because the employer's liability insurance usually has a
greater dollar value than the employee's personal automobile
coverage. Consider the following:
- In December 2007, International Paper Company settled a personal injury lawsuit for $5.2 million with an Atlanta woman who lost an arm after being rear-ended by one of the company's employees. The International Paper employee was driving a company sedan and was on her company-issued cell phone at the time of the accident. Even though the company had a policy in place that only allowed employees to use hands-free phones while driving for company business, the company still decided to settle the suit rather than let the case go to trial.
- In October 2004, a Virginia law firm settled a $30 million lawsuit for an undisclosed amount after one of its attorneys struck and killed a 15-year-old pedestrian. The attorney was driving her vehicle and talking on her cell phone to a client at the time of the accident.
- In December 2001, a Florida jury awarded almost $21 million to a passenger in a car that was struck by a salesperson who was using a cell phone while driving. The employer was found liable because the salesperson had been driving for the employer at the time of the accident.
- In February 1999, a large Pennsylvania investment firm paid a $500,000 settlement to the family of a motorcyclist killed by one of its employees who had been making a work-related call after hours on his own personal cell phone while driving.
As these and similar cases illustrate, employers can be liable
for accidents caused by their employees when an employee is driving
a company vehicle or using his or her personal vehicle while
engaged in business-related activities. Moreover, employers face
potential liability for accidents caused by their employees'
use of cell phones while driving if the company provides the
phones, or if the use of cell phones is an expected or encouraged
part of the job.
Employer liability in these types of cases is based on a legal
doctrine called respondeat superior. The doctrine of respondeat
superior exists throughout the United States, including Minnesota.
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.
Although many of the cases involving employer liability for
employee cell phone use while driving happened in states other than
Minnesota, Minnesota employers still have cause for concern. After
all, the legal doctrine that formed the basis for employer
liability in the cases mentioned above—respondeat
superior—applies in Minnesota. In addition, Minnesota law
requires employers to indemnify employees for civil damages,
penalties, or fines asserted against the employee, provided the
employee was acting in the scope of employment and was not guilty
of intentional misconduct, willful neglect, or bad faith; thus,
work-related calls or even personal calls while driving for work
that cause injury or damage may fit within this law.
The Minnesota Legislature has also been concerned about the dangers
associated with cell phone use while driving. In August 2008, the
Minnesota Legislature made it illegal for an individual to send a
text message, e-mail, or access the Internet on a wireless
communication device while driving. More recently, in April 2009, a
bill was proposed to prohibit the use of hand-held wireless devices
while driving. Although this bill did not pass out of committee, it
demonstrates that the Minnesota Legislature continues to have
concerns regarding the dangers posed when people mix cell phones
with driving, and this issue is likely to be raised again this
session.
Several states have placed an outright ban on the use of cell
phones while driving, and an even greater number of states have
regulated, in some fashion, cell phone use while driving, for
example, allowing only hands-free use. In addition, just over two
months ago, President Obama signed an executive order banning
federal employees from texting while driving. President Obama's
order covers both federal employees who use government-provided
cars or cell phones and federal employees who use their own cell
phones and cars to conduct government business.
The growing concern over the use of cell phones while driving is
not unfounded. Almost 90 percent of Americans own cell phones.
Moreover, one nationwide survey conducted by Harris Interactive in
2009 found that 72 percent of those who drive and own
cell phones use them to talk while driving. Although statistics on
the number of crashes caused by cell phones is incomplete, one 2003
study conducted by the Harvard Center of Risk Analysis estimated
that cell phone use while driving contributed to six percent of
crashes, which equated to 636,000 crashes, 330,000 injuries, 12,000
serious injuries, and 2,600 deaths each year. The study also
estimated that cell phone-related crashes cost $43 billion annually
in property damage, lost wages, medical bills, and loss of
life.
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—now more than ever—for employers to
consider adopting or adapting 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; or
providing instructions and training on safe cell phone use, such as
requiring hands-free technology or that an employee find somewhere
safe to stop before using a cell phone.
Regardless of the approach taken, employers should make sure that
policies are written ones. Employers should also require employees
to acknowledge receipt of any such policy in writing, and take
steps to monitor compliance with and consistent enforcement of the
policy. Even though carefully drafted cell phone policies may not
completely shield employers from liability, they may minimize the
risks of a costly lawsuit.
If you have questions regarding cell phone policies or if you would
like assistance in developing and implementing a cell phone policy
for your company, our experienced team of Labor and Employment Law
attorneys can assist you. We will help you assess the needs of your
business, weigh the possible risks and benefits associated with a
cell phone policy, and develop a cell phone policy that is tailored
to your company.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
