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Your employee is drivng to a business meeting in a company car. He is talking on his mobile phone, leans over to grab a file, and, momentarily, looks down at the file. When he looks up, he sees that traffic ahead has come to a standstill. He applied the brakes, but too late, and he plows into the vehicle in front of him, causing serious injuries to the driver and occupants of the opposing vehicle. Are you, the employer, liable? Does it matter whether the employee is driving a company car or his own if he is on company time and on company business?

In recent years, in increasing numbers, in the scenarios above, injury victims are pursuing litigation against the driver’s employer as well as the driver, and they have experienced success:

A restaurant promises delivery in 30 minutes "or your order is free." If the delivery person strikes and injures a pedestrian while trying to deliver within the deadline, the company has been held legally responsible for the pedestrian’s injuries.

A sales organization gives its sales staff company cars and mobile phones to make sales calls. On the way to a sales meeting, a sales person, while driving and using his mobile phone, hits a pedestrian; most likely, in most states, the company will be held responsible for the incident. If he is using the company car, but is "off the clock", the result might be different.

A law firm issues mobile phones to all of its lawyers, so that they can call the office or their important clients. An attorney hits a pedestrian while on the telephone, because he was engaged in sensitive telephone negotiations with another attorney. The law firm will have to compensate the pedestrian for his/her injuries.

In 1999, the family of a motorcyclist who was killed by an employee of a Pennsylvania firm settled their wrongful death claim for $500,000. The Pennsylvania firm paid the settlement because the employee had been using his personal mobile phone to place business calls while driving and was engaged in that activity when the accident occurred.

In the winter of 2001, a multi-million dollar verdict was rendered against the employer in a lawsuit where a passenger in the opposing vehicle was seriously injured by a salesperson who was making sales calls while driving.

In 2004, in Virginia, a law firm was found responsible when one of its attorneys, driving and using her cell phone, struck and killed a 15 year old pedestrian; the multi-million dollar lawsuit was settled for an undisclosed amount.

And, finally, in Georgia, late 2007, International Paper settled a multi-million dollar injury case, resulting from a rear-end auto collision that cost a Georgia woman her arm. She was rear-ended by a company employee, driving a company car and using a company issued mobile phone at the time of the accident.

Thus, employers can be and often are held liable for accidental injuries caused by employees on company business; this may be true, regardless of whether the employee is using a company vehicle or his own when an employee is driving a company vehicle or using his or her personal vehicle. The test seems to be whether the employee is engaged in “distracting” company business (using a mobile phone or texting device for business purposes) when the accident occurs. If the company engages in a policy of expectation or encouragement of this type of activity in the moving vehicle, this will, most likely, enhance the result or assure a liability finding, regardless of whether the phone is a company or personal phone.

Why is this the case, you ask? Why should an employer be responsible for the employee’s negligence? The answer is found in a legal concept or point of law call “respondeat superior”. This concept is in place all across the United States; I am not aware of any state that does not, in some way, adhere to the principle. Respondeat superior is a concept in basic agency law that holds an employer/principal responsible for the harm/torts caused by its employee/agent, as long as the employee was acting within the scope of his/her employment at the time of the accident. Further, many attorneys have been successful in proving that the employer is directly responsible for the plaintiff’s employee-caused injuries, because of the employer’s own negligent conduct in failing to properly train, encouraging mobile phone use while driving, or in failing to have a policy of discouragement of mobile device use while driving. In some states, an employer, to avoid liabiility, should avoid providing a company phone and should have a strict policy against usage while driving. However, if the employee is on company buisness and/or driving a company car, these precautions may not be enough for the employer to avoid liability.

Some state laws require employers to indemnify employees for civil damages, verdicts or judgments assessed against an employee. Again, the test is whether the employee was acting in the scope of his/her employment and was not engaged in reckless or intentional non-work misconduct. Thus, even a casual personal call while on company business may result in employer liability.

As I, and many others at this location have commented, distracted driving is extremely dangerous. Many state legislatures have passed laws banning or restricting mobile phone use, texting, emailing, or internet browsing while driving. Did we really need legislation to tell us that this activity is stupid? If an employer encourages an employee to drive while distracted, is it any wonder that the law and a sensible jury will hold the employer responsible?

I recently posted an entry about Ford’s new MyTouch technology, which introduces hands-free, voice activated technology. Many other “hands-free” type technologies have entered the marketplace. But, in using these “hands-free” devices, the question is still the same: Is the driver “distracted” by the use of the technology? At the federal level, President Barack Obama has issued and executive order which, in essence, bans all federal workers from texting while driving on government business. The order creates no distinction between government owns vehicles and/or communications devices. If you are engaged in government business, whether using your car and your phone or the government’s, you are banned from texting while driving.

A large percentage of American drivers own cell phones. A large majority of owners confess to using these devices while drivng. According to a 13 state study conducted by the University of Michigan, Transportation Research Institute, driver hand-held cellular phone use has more than doubled between 2001 and 2005. This means (in 2005) that at any given daylight hour, around 36,550 drivers were conversing on cellular phones while driving on Michigan roadways. The trend line fitted to these data predicts that by this year, 2010, driver hand-held cellular phone use will have increased to 55,000 drivers at any given daylight hour. The study concludes that cellular phone use while driving will continue to be an important traffic safety issue, and highlights the importance of continued attempts to generate new ways of alleviating this potential hazard.

Considering all of the data associated with the dangers of using mobile devices while driving and the increase in the use and multiple functions of these devices,

Lawsuit Financial strongly urges employers to adopt strict policies prohibiting employees from using these mobile devices while driving to an from work or with a business purpose. If you won’t do it for the safety of your employees or the innocent drivers (and their spouses and children) that they may encounter “by accident” as the result of their distracted driving, do it because you may be found liable for their negligent conduct and you may be responsible for significant damages. Provide training on these subjects; encourage employees to find a safe place to stop, pull over, and utilize these devices.With the risk of employer liability associated with employee use. Put your policies in writing; require that employees acknowledge receipt of the written policy or the training in writing. Vigorously enforce the policy and monitor your employees compliance with your programs and policies. Again, if you won’t do this for the safety of all, do it to minimize or prevent the risks of a serious injury accident and the lawsuit that will be filed against you as a result.

One Comment

  1. Gravatar for Truckie D

    Mark -

    Very interesting post. I'd appreciate it if you could answer the following:

    Where does the law stand if an employer has a strict (and enforced) no cell/no texting rule and an employee violates that resulting in a crash or whatever?

    What about an owner/operator in the above?


Comments are closed.