Employee Cell Phone
Use May Lead to Liability
A Harvard study found that the number of cell phone
subscribers has jumped from 94 million in 2000 to more than 128 million.
The boundary lines of work have been increasingly expanded, with employees
working and making cell phone calls on the way to and from their homes, at
home, while on vacation, and while enjoying recreational activities.
It
is likely that many of us have used cell-phones while driving. According to
the National Highway Traffic Safety Administration about one in three of
all drivers use a cell phone for outgoing or incoming calls while driving.
Other federal studies say the figure is much higher – finding that over 70%
of all cell phone users talk on the cell phone while driving.
A
properly used phone in the car can have many benefits. It can allow an
individual to call for emergency roadside service if broken down on the
highway. A phone in the car can also allow someone to report unsafe
conditions and obtain directions.
However,
the fact remains that inattentive driving is involved in 25% of all
crashes. One of the most comprehensive studies done on cell phone use by
the New England Journal of Medicine found that the risk of accidents is
four times higher when a motorist is using a cell phone. The state of New York has banned
drivers from talking on hand-held phones.
Companies Wary of Lawsuits
Recently, employers have been targeted when their employees
are involved in car accidents while using cell-phones. Accident victims
argue that employers should be liable for not taking public safety into
account when encouraging and profiting from an employee's cell phone use.
Recent cases include:
- A jury verdict
against Dyke Industries ordering them to pay $21 million to a woman
hit by a salesman for the company who was on his phone. The salesman
was talking on the cell phone while driving to a sales appointment.
His Ford Explorer collided with a 78-year old woman's Buick. The woman
was injured so severely she required a ventilator to breathe. She has
since died. The insurer for the employer settled the final tab - $16
million on behalf of the company and $100,000 for the salesman.
- A case involving a
stockbroker for Smith Barney resulting in a $500,000 settlement to the
victim. The broker ran a traffic signal and killed a 24-year old
motorcyclist. The broker was allegedly trying to make a sales call or
two before arriving at a restaurant for dinner.
- The State of Hawaii agreed
to pay $1.5 million as its share of liability for an accident
involving a state employee who allegedly was talking on her cell phone
while driving. The accident occurred when a special education teacher
hit a tourist from New
Jersey while he was walking across the
highway, causing permanent brain damage. Based on vicarious liability,
the state was found 20% liable for the plaintiff's injuries.
Probably
the most highly publicized case is that against Cooley Godward.
A $30 million lawsuit was filed against Cooley when an associate on a
cell-phone fatally ran over a 15-year old girl in March of 2000. The
associate did not stop after the accident, even though her Mercedes had
struck the 15-year old with enough force to break a headlight and shatter a
corner of the windshield. The associate claimed at the time that she
thought she hit a deer. The associate served 12 months of a five-year
sentence in a work-release program at a Fairfax County, Virginia jail. She
also lost her law license.
The
suit alleges that the firm is partly liable because the associate's job
involved doing business by cell phone. At issue in the trial will be
whether or not the associate was using the cell phone for business at the
time of the accident. The suit is still pending.
Employers
fear that these lawsuits will constitute a growing trend and a costly
implication for business across the nation.
Many Employers Banning Cell Phone Use While Driving
Fear of rising lawsuits and concern for safety of employees
and the public has lead many employers to prohibit employees from using cell-phones
while driving. An official written policy on cell-phone use is highly
recommended, especially in those businesses where employees spend a
substantial amount of time commuting or traveling on business.
For
instance, ExxonMobil adopted a policy banning employees from using cell
phones while driving on company time. The rule applies to 88,000 employees
and was adopted after ExxonMobil used its own scientists to research the
issue.
Some
employers choose to ban only handheld devices. For instance, General Motors
recommends that employees use hands-free devices and to refrain completely
from cell phone use under rigorous driving conditions.
However,
policies that ban only hand-held cell phones may be insufficient. Hand-held
phones are not the only culprits. The AAA Foundation for Traffic Safety
found that use of hands-free phones also contributes to inattention and
distracts drivers the same as hand-held phones. It is the conversation that
distracts the driver not the device.
What Should Employers Do?
All
employers should be advised to have written cell-phone policies. The best
practice will be to prohibit cell phone use entirely, since even hands-free
devices can lead to distraction and increased accidents. The policy should
clearly state that employees are required to pull over to the side of the
road to make or receive calls and check messages. The policy can be
extended to apply to pagers, PDAs, and remote
wireless access.
If
the employer chooses to allow hands-free devices, the policy should limit their
use to clear driving conditions. Employees should be prohibited from using
even hands-free devices in heavy traffic, hazardous weather, or stressful
driving situations.
Employers
should require employees to sign a written acknowledgement that they have
read and received the cell-phone policy.
This
is a developing area that counsel should monitor for issues of employer
liability.
|
