Employer Liability for Employee Use of Mobile Phones While Driving

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1201 Louisiana St, Suite 310 · Houston, Texas 77002

Main: (713) 655-7700 · Fax: (713) 655-7701

bvonhatten@hooverkernell.com

Employer Liability for Employee Use of Mobile

Phones While Driving

February 2012

Brian Von Hatten

Hoover Kernell, LLP

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February 2012

Employer Liability for Employee Use of Mobile Phones While Driving

By: Brian L. Von Hatten, Associate at Hoover Kernell LLP

Attorney Profile

Can you afford $16,000,000 for one of your employee’s phone calls? That is the amount of a jury award from one such case in Florida.1 The employee driver caused an accident resulting in severe injuries. The plaintiff sued the driver and the employer, and after reviewing the driver’s cell phone records by subpoena, it was shown he was talking on the phone at the time of the accident. In another case from Georgia, International Paper settled after one of its employees caused an accident resulting in the other party losing her arm.2 It was argued that the cell phone was an undue distraction while driving. With the proliferation of mobile phone usage by employees, employers are undoubtedly exposed to increasing liability. This article briefly discusses notions of employer liability and what business professionals may do to help reduce corporate risk.3

The concept of employer liability for the actions of its employees has existed for decades, if not centuries, and stems from agency and principle law. The Latin phrase respondeat superior, which means “let the master answer,” stands for the proposition that an employer may be liable for the negligent actions of its employees.4 While state common law requirements for respondeat superior may differ slightly, most generally require that the employee be acting within the scope of his or her employment or in furtherance of the employer’s interests.5 Before the ubiquitous use of mobile phones, the often litigated issue when dealing with employers and

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Available at http://www.mobilelutions.com/court-cases/ (Bustos v. Leiva et al)

2 Available at http://www.lawyersandsettlements.com/settlements/11312/international-paper-cell-phone-crash.html

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This article is not intended to provide legal advice. Employers should consult with their legal counsel when developing their own mobile phone policies.

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Available at http://en.wikipedia.org/wiki/Respondeat_superior

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employees in vehicles was whether the “frolic” or “detour” would support a finding that the employee was acting within the scope of his employment. Mobile phones may be reshaping this question, and actually broadening what it means to be acting within the scope.

In this day, an employee could be driving his personal vehicle to or from a destination that is not related to his employment, yet still be acting for his employer when conducting company business over a mobile phone (even if it is a personal phone). Conducting business would of course include speaking verbally, but more and more, also includes text messaging or emailing. If an employee were to cause an accident while doing any one of these things relating to company business, the liability to the employer could be staggering.

An in-depth discussion of negligence and related topics is beyond the scope of this article. With recent legislative trends however, one concept deserves mention: the concept of negligence per se. In short, negligence per se is a doctrine that makes it somewhat easier for a plaintiff to prove a cause of action in negligence.6 To establish a cause of action for negligence, the plaintiff must show several elements to prove his claim. If, however, there is a statute prohibiting the negligent conduct, such as a law prohibiting the use of cell phones while driving, the doctrine of negligence per se may eliminate the need for plaintiff to prove each of the traditional elements of negligence.7 Some states have already implemented bans on cell phone use while driving and additional states following suit is likely.8 The National Traffic Safety Board has even called for a nationwide ban on the non-emergency use of mobile phones while driving.9 As more of these statutes precluding mobile phone usage by drivers are enacted, there

6 Available at http://legal-dictionary.thefreedictionary.com/negligence+per+se

7 Negligence per se generally requires that the person harmed be the type of individual the statute was enacted to

protect, and that the injury be a resulting injury it was designed to prevent. Injuries resulting from auto accidents caused by one using a cell phone where there is a statute banning such use would arguably fall within this category.

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Available at http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html

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is likely to be an increase in litigation over the accidents and injuries which invariably occur as a result of driving while talking, texting, or emailing.

Legislation in this arena is developing rapidly, and for the human resources or risk management professional, it is becoming a difficult situation to manage (assuming it is being managed). This begs the question, what can employers do to mitigate this increasing risk? Depending on the risk tolerance for the organization, an employer should consider implementing one or more of the following recommendations, all of which should be reflected in the company’s policies and procedures manual.

• Banning all use of mobile communications devices while driving;

• Banning text messaging or emailing while driving (where talking is allowed);

• Requiring employees to comply with applicable local and state laws regarding cell phone use while driving;

• Limiting use to only hands free devices (where allowed by law);

• Requiring employees to pull over if needing to send or receive a call;

• Educating employees, including discussing the cell phone policy during safety or new hire training.

Due to the changing laws in this area, it may be impractical for multi-state employers to attempt to mold these relevant policies around the various state laws. A broad restriction banning cell phone use is the most risk-averse approach to this growing problem.

Research has revealed that cell phone use while driving is tantamount to drunk driving.10 We all know that driving while intoxicated is illegal, however cell phone use while driving is still allowed in most states. Unlike a case of drunken driving, it is feasible to see how using a

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cell phone to conduct company business may be acting within the scope of employment. Increasing state statutes banning cell phone use will make it easier to prove a case of negligence, and the doctrine of respondeat superior may impute this liability to the employer. Those members within your organization who are involved in risk management or policies and procedures drafting would be advised to include a policy regarding employee’s mobile phone use while driving.

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