Limiting Cell Phone Liability

By: Dale Mask 

New state laws are becoming more strict on the use of cell phones, PDAs, and laptop computers. 

Many employers provide wireless communication devices such as cell phones, PDAs, and laptop computers to employees. As a result, these laws can restrict common business uses such as using a cell phone to call a client, sending text messages or reading emails on a BlackBerry or other similar device while driving. For example, under a new Louisiana law sending a simple "running late" text message to a client while driving to the appointment is forbidden.

Even without specific laws limiting these practices, employees who are engaging in business wireless communication activities are exposing their employers to increased potential liability. Studies show that driving while using a cell phone opens up increasing possibilities for accidents and potential fatalities. Now, consider the potential for using the cell-phone, text messaging or other wireless communication devices for work-related purposes while driving and you can envision all sorts of employer liability concerns. These days, the employer may be held responsible when an accident occurs while a cell phone is being used within the scope of employment. 

Employer liability exists when the employee is driving a company vehicle as well as when the employee is using their personal vehicle while engaged in business related activities. When it comes to personal automobile insurance coverage, attorneys for injured parties will typically use the “deep pocket” approach and look to the employer because the employer's liability insurance usually has greater dollar value than the employee. Attorneys can easily subpoena cell phone records to determine if drivers were using their cell phone near the time of the accident. Because the record identifies who the driver was speaking with, it’s an easy next step to determine if the call was business related.

In one case, Dykes Industries of Little Rock paid $20.9 million for personal injuries sustained by a citizen in a car accident where a Dykes employee was using a cell phone at the exact time of the accident.

In another case, Cooley Godward, a Virginia-based law firm, was slapped with a $30 million wrongful death suit where an employee of the firm was conducting business on her cell phone when she struck and killed a fifteen-year-old boy with her car.

The State of Hawaii agreed to pay $2.5 million as its share of liability for an accident involving a state employee who allegedly was talking on her cell phone when she hit a tourist from New Jersey which caused permanent brain damage. In this case, the state was found twenty percent liable for the plaintiff's injuries.

In still another case, the employee was on his own time and was using his own phone but was making a call to a customer. The employer, a major stockbroker, settled the case for $500,000.

These cases are likely to be just the beginning. A survey by the Insurance Research Council indicated that 84 percent of cell phone users already believe that using a phone while driving increases the risk of an accident and over 60 percent of people claim to use their phones while driving.

What should an employer do? 

The employer should set guidelines concerning the use of cell phones while driving and prohibit the use of making cell phone business calls while driving or using cell phones while driving company owned or leased vehicles.

Here is a list of actions employers can take to reduce liability from employees using cell phones while driving.

1.   Establish employee policies and safety manuals stating that using a cell phone, text messaging devices, or any other wireless communication device for company business at any time while driving is prohibited.

2.   Modify employee policies or practices requiring employees to immediately answer phones or text messages. If an employee is driving, they should find the closest safe location to stop the vehicle and then return a call or message.

3.   Communicate the policy to employees. Having written policies and communicating these policies can help limit damages by showing the company took steps to avoid driver accidents.

4.   Require “hands-free” cell phone users to follow the same policies and safety guidelines as their hand-held cell phone counterparts. The conversation can be just as distracting as punching in numbers to make a call. 

5.   Enforce violators of company policy and adhere to any local laws restricting cell phone use. This also reinforces the idea that the employer is serious about safety and expects employees to follow the rules and the law.

6.   Establish procedures rules for the use of wireless communication devices while driving. The following are examples of safe practices:

• Make necessary calls before getting on the road  

• Use the cell phone mailbox to avoid having to pick up calls immediately while driving

• Activities such as checking messages, returning calls and text messaging must only be done at parking lots, rest stops or other off-road areas.

7.   Document acknowledgement of policies and restrictions related to cell phone usage. Have employees sign a policy stating they understand, and are willing to comply with, the policies and procedures regarding cell phone and wireless messaging system usage.

Conclusion

Due to increased potential for accidents and injuries and the litigious nature of our society, employers should weigh the benefits of unrestricted cell phone and wireless messaging system use against the potential cost of liabilities. Eliminating cell phone and wireless messaging system usage while driving can be in the best interest of the employer and may prevent untold personal tragedy caused by the increased potential for accidents and injury.

By: Dale Mask

© 2015 Alliance Training and Consulting, Inc.

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