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Employer Liability for Injuries Due to Employee Cellular Phone Use

In one decade, cellular telephone use has gone from being a novelty for the fortunate few, to being commonplace in our society. Most Americans have a “cell phone” and many use them while driving. In light of the associated dangers, highway safety advocates argue that cell phone use while driving adversely affects a driver’s concentration and reaction time, thereby posing a danger to themselves and others.

Cell Phone Usage and Personal Injury Lawsuits

Cell phone usage has increasingly become the cause of accidents or a contributing factor, resulting in an increase in personal injury litigation involving cell phones. When a driver is using a cell phone at the time of an accident and the accident happens while the driver is on company business, the phone call is a business one, or the cell phone was provided by the company, that company will often be sued along with the driver/employee, under a theory of “vicarious liability” for the actions of its employee. Actual examples include:

• A jury in Miami awarded a 78 year old woman and her husband $20.78 million against a driver and his employer for injuries suffered in an automobile crash. The driver initially admitted owning a cell phone but denied using it at the time of the accident. Cell phone bills indicated otherwise and the driver finally admitted making a sales call “before” calling 911 about the accident.
• The state of Hawaii paid $1.5 million to the family of a New Jersey tourist struck by a car driven by a public school teacher, who was using her cell phone at the time.
• Salomon Smith Barney paid $500,000 in settlement to the family of a motorcyclist killed in a collision with a broker, who was on his cell phone at the time.

How Employers May Protect Themselves
Employment experts have suggested that employers familiarize themselves with cell phone use laws in their particular jurisdictions and consider the potential liability arising out of cell phone use by employees. Companies that nonetheless believe cell phone use is necessary or advisable for business, especially if cell phones are provided to employees, have been instituting use policies for employees to minimize liability. Typical provisions of such use policies include:

• A statement of actual and potential health risks for cell phone usage.
• Requiring a promise not to use cell phones while driving or operating equipment.
• Restricting usage of a cell phone to when the car is pulled off the road in an emergency.
• Requiring documented training sessions for safe cell phone use.
• Conditioning reimbursement for cell phone costs on employee certification that the cell phone was not used in any way that violates company policy.
• A statement that any policy violation subjects the employee to disciplinary action.

Having such policies in effect may reduce, but will not likely eliminate, a company’s potential liability. To be most effective, the policy on cell phone use may need to be in writing and signed by the employee, acknowledging that the policy has been read and will be obeyed. Actual disciplinary action taken against employees who do not abide by the policy may also be helpful in limiting an employer’s exposure to liability.

Establishing Liability

Although standards of proof vary among jurisdictions, before employer liability may be imposed, generally a plaintiff may have to prove that the use of the cell phone caused the crash (or was a contributing factor) and the call was work related or made on a company cell phone. Where the company provides the employees with the phone, it may be easier to establish liability. Further, some courts have held that employer liability may be established where the employer directs or expects an employee to conduct company business on a cell phone.

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