Aiken & Aiken

Michele Aiken February 26th, 2008

Cell phones have become almost indispensable in today’s society. Frequently, employers provide their employees with cell phones as a part of their job. Even if the cell phone is not employer-provided, many jobs today necessitate the use of a cell phone. Employers need to be wary of the complications that can arise from their employees’ use of cell phones.

More and more claims are being asserted against employers by plaintiffs who have been injured by an employee/driver who was using a cell phone at or near the time of injury. Under the doctrine of vicarious liability, employers may be held legally liable for its employee’s negligent acts committed in the course of employment. It is not even a requirement that an employee be on company business, or that the phone call in question be a business call in order for employers to be held liable.

Some recent cases that were brought against employers under the doctrine of vicarious liability due to employee cell phone usage include:

• In Pennsylvania, a stockbroker, making sales calls on his cell phone while driving, hit and killed a motorcyclist. While the cell phone was not provided by the employer, individuals in the stockbroker’s position were routinely expected to make sales calls outside of business hours. The employer settled the suit against it for $500,000 before the case went to trial.
• In Arkansas, an employee was talking on a cell phone at the time that the employee was involved in a car accident. Suit was brought against the employer for the injuries sustained by another individual involved in the accident. The employer was found liable and was assessed damages of over $20 million.
• In Virginia, a law firm was sued for $30 million when their employee, who was taking a business call on a cell phone while driving, struck and killed a teenager with the car.
• In Hawaii, a state employee, while driving and talking on a cell phone, struck and severely injured a tourist. The state was found to be partially liable for the injuries the tourist sustained, and the state settled for $2.5 million.
• In Georgia, an employee of a construction company caused a multi-car accident while attempting to access voice mail on a company-provided cell phone, causing serious injuries to another individual involved in the accident. The company settled in the suit brought against it for over $4 million.
• Also in Georgia, an employee, while using a company-provided cell phone, rear-ended another car and caused an accident that ended in the other driver losing an arm. In December 2007, the employee’s company settled the suit for over $5 million.

In addition to the vicarious liability issues employers face, OSHA (and numerous other state statutes) mandates that employers have an affirmative duty to ensure worker’s safety by establishing appropriate policies. In light of the recent case law, this duty may encompass procedures for the safe use of cell phones.

Because of the litigation activity in this area and the affirmative duty under OSHA, employers should implement a cell phone policy for their employees. While such a policy will not absolve employers from all liability, the policy, and the strict adherence to it, can be used as an affirmative defense if a lawsuit is brought against the company. Employers should consult with counsel before implementing a cell phone policy to ensure that the policy provides as much protection as is possible.

• Employment
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