Cell phone liability: Can you hear me now?

Excerpted from Oklahoma Employment Law Letter, written by attorneys at the law firm Doerner, Saunders, Daniel & Anderson, LLP

October 21, 2005

by Johnathan D. Horton

Cellular phones, personal digital assistants, and other technology breakthroughs have made Americans more available and connected to their jobs. Employers recognize that those advances have improved customer service and employee efficiencies.

Employers, however, may not appreciate how the spread of technology also has increased their potential exposure to liability for their employees' acts. State legislatures and city counsels have enacted laws addressing distracted driving, which may increase the prospect of employer liability. Let's look at the current state of the law.

It's about the science

Distracted driving recently has received a lot of attention, in part because of studies of its effects by the scientific community. Two recent studies highlight safety concerns about using cell phones and driving. A February 1, 2005, University of Utah study found that younger motorists who talked on cell phones while driving moved and reacted slower and increased their risk of accidents.

The Insurance Institute for Highway Safety released a July 12, 2005, report suggesting drivers using mobile phones were four times more likely to be involved in crashes that result in injuries. That study found that hands-free equipment didn't reduce the chance of injury to drivers.

Those studies are just two of several scientific studies examining the effects that cell phone use and other distractions have on drivers. While the scientific community has found the overall results mixed, the studies have put those safety issues in the spotlight and raised public awareness. As a result, states and some major cities now have enacted laws regulating the use of cell phones.

Government wades in

Policymakers have struggled to find a solution to distracted driving. States and cities have enacted several different laws in response to the issue, and each law takes a different approach. A review of the Governors' Highway Safety Association website yields the following results:

• Ten states — Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Minnesota, New Jersey, Tennessee, and Texas — and the District of Columbia have adopted special laws for novice teen drivers that restrict their use of cell phones and wireless communication devices.
• Nine states — Arizona, Arkansas, California, Delaware, Illinois, Massachusetts, New Jersey, Rhode Island, and Tennessee — also have prohibited the use of cell phones by school bus drivers except in emergencys.
• Some states, including New York and New Jersey, now prohibit the use of hand-held cellular devices but allow hands-free cell phone operation.
• Cities that have followed suit and enacted similar restrictions include Santa Fe, Chicago, and the District of Columbia. New Hampshire, on the other hand, has adopted a comprehensive distracted-driving law that applies to many different situations, not just cell phone use.

So what does that mean for employers? More laws equals a greater risk for lawsuits.

Employer liability

Employers risk lawsuits stemming from cell phone use from two sources — their employees and other parties. Employees may claim that health problems or injuries resulted from cell phone use for company business. For example, in Oklahoma, these claims fall within the scope of the Oklahoma Workers' Compensation Act, so employers need to apply their normal workers' comp procedures if such a claim is filed.

Third-party claims, on the other hand, commonly arise from auto accidents allegedly caused by an employee talking on a cell phone for company business at the time the accident occurred. Third-party claims are typically based on the common-law doctrine of respondeat superior.

The theory of respondeat superior is Latin for "let the superior answer." It means employers are liable for the acts their employees commit in the course of their employment. Third parties also may argue that the employer itself is liable to them directly (rather than liable for employees' actions) for personal or property injuries because the employer encouraged the use of cell phones and didn't consider public safety.

One high-profile example of a third-party claim involved a $30 million lawsuit against a San Francisco law firm. One of its employees — an attorney allegedly making a business call on her cell phone — struck and killed a 15-year-old on a busy highway outside Fairfax, Virginia. The teen's family claimed the law firm was liable for the associate's actions because she was talking to a client and that the firm itself was directly liable because it encouraged employees to use cell phones to conduct business, even while driving. In October 2004, the law firm settled the lawsuit. In addition to serving some time in jail and surrendering her law license, the attorney was ordered to pay $2 million in damages to the teen's family, and although the firm wasn't held liable, its insurance company reportedly paid $92,500 to resolve the case.

What's an employer to do?

As an employer, how do you limit your risks in this technologically advanced society? Most importantly, you should have a written cell phone policy addressing the use of cell phones while traveling. That's especially true for employers that provide employees with either cell phones or company automobiles. You should consider applying the policy to pagers, personal digital assistants, remote wireless Internet browsers, and other devices. If your company has employees in a city or state that has adopted a law regarding cell phone use, the policy should require that employees comply with any local or state law.

Some companies' policies prohibit cell phone use for business entirely, except in emergencies (i.e., to call 911), since even hands-free devices may distract drivers and increase the risk of an accident. Before banning cell phone use entirely, however, you should look at the key functions of your employee positions and determine whether it's feasible to eliminate all cell phone use. If not, at a minimum, you should consider enacting a policy that limits employees' cell phone use.

One frequent limitation is allowing use only when employees are parked or pulled over to the shoulder or a safe location. Another — although riskier — alternative to consider is whether to allow cell phone use only with hands-free equipment. You also should consider eliminating reimbursement for cell phone use because it implicitly approves such use. If you provide company cell phones, you may want to put a warning on them noting that using the cell phone while driving is dangerous and that it should be done only in emergencies.

In implementing the policy, you should explain the dangers of cell phone use and distracted driving to your employees. You should provide them a written copy of the cell phone use policy and request that they sign it. If your handbook requires employees to read and review any amendments or changes, you may want to provide the cell phone policy as an amendment or an addition to the current handbook.

As this area of the law develops, you should expect to see an increase in claims and litigation over these issues. Preparing to meet those claims allows you to position yourself to resolve them and minimize liability.

Copyright © 2005 M. Lee Smith Publishers LLC. This article is an excerpt from OKLAHOMA EMPLOYMENT LAW LETTER. Oklahoma Employment Law Letter does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the Oklahoma Employment Law Letter seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.

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