LACK OF CELL PHONE DRIVING LAWS MAY NOT PROTECT AGAINST EMPLOYER LIABILITY FOR EMPLOYEE ACCIDENTSRobin Foret
July 30, 2008 — 2,625 views
Most of us have experienced the frustration caused by another driver’s lack of attention while he or she is embroiled in a conversation on a cellular telephone. The scenario usually involves a driver with only one hand on the wheel holding a cell phone to his or her ear and at the same time attempting complicated vehicular maneuvers such as backing up, turning, parking, changing lanes, etc. Near misses with such vehicles lead most of us to say “there ought to be a law” concerning talking on a cell phone and driving with one hand on the wheel.
Surprisingly, only a few states such as California, New York, the District of Columbia, Connecticut and New Jersey have passed laws that require the use of a hands-free cell phone device during the act of driving a vehicle. Other states such as Texas, Oregon and Tennessee and Rhode Island have enacted laws limited to school bus drivers and/or to novice drivers. Several municipalities have also enacted similar laws. This trend, however, is likely to continue as states and municipalities experience increased pressure from citizens groups to regulate this practice.
Regardless of whether your state or municipality has enacted a hands-free device law to regulate the use of cell phones while driving a vehicle, your liability as an employer for the vehicular negligence of your employees has increased as a result of the invention of the cell phone. This is because employees are more likely to be on business calls during off-duty hours, and while driving to and from work now that everyone over the age of ten has a cell phone. A Georgia case involving a collision during a cell phone call illustrates this growing problem.
In Hunter v. Modern Continental Construction Company, Inc. (“Modern”), 287 Ga.App. 689, 652 S.E.2d 583 (2007), a Georgia court considered whether an employee engaged in a work-related cell phone call in route to the office was in the course and scope of employment so that his employer had potential liability for injuries sustained by Hunter as a result of a motor vehicle accident. The employee, a shift supervisor for Modern, was driving to work when he either made a work-related telephone call using his cell phone, or received a work-related telephone call that may have distracted him, at the time of the collision with Hunter.
Employers are ordinarily not liable for an employee’s off-duty actions that injure third parties unless at the time of the injury, the employee is engaged in some activity for the benefit of the employer. In such circumstances, the employee is said to be acting in the “course and scope of employment,” and the employer can be held responsible for that person’s actions and/or omissions. Under the Portal-to-Portal Act, simply going to and from work in an automobile is considered outside of the course and scope of the employee’s duties, and an employer is not liable for the acts and/or omissions of an employee during that time period. In Modern, however, the use of the cell phone to make and/or to receive a business-related call at or near the time the accident occurred resulted in potential liability on the part of the company. The Georgia Court of Appeals concluded that it would be for the jury to decide whether the employee of Modern was involved in company business by virtue of a conversation on a cell phone when his vehicle collided with Hunter’s vehicle. If a jury found that the employee was in the course and scope of employment and was also negligent, the company could be held liable for the accident.
What can you do to protect your company?
Check your state and municipality to determine whether there is a hands-free device law (or similar regulation) limiting the use of cell phones while driving vehicles. In certain instances, a driver’s violation of the law during an accident will increase the likelihood that negligence will be found.
Have a written policy prohibiting the use of cell phones to conduct business unless a hands-free device is used. This policy should preferably be included in an employee handbook.
Discourage business calls while an employee is driving to and from the office unless it is necessary to accomplish his or her job. In many instances, such calls are unnecessary and will mean that the employee is in the course and scope of employment.
Make sure that your automobile liability insurance covers accidents that occur under these circumstances. Automobile accidents involving business-related cell phone calls may occur despite your best efforts to avoid them.
The information contained in this article is not designed to address specific situations, and does not include rules and regulations that apply to all states. If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.
The Foret Law Firm
Robin Foret practices in the areas of employment law, commercial litigation and specialty insurance defense claims. She handles a variety of employment matters such as theft of trade secrets, breach of employment agreements, non-competition agreements, wage and hour issues under the Fair Labor Standards Act (FLSA), discrimination and harassment issues under Title VII of the Civil Rights Act of 1964 (Title VII) and the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) issues, and the Sarbanes-Oxley Act (SOX). Robin has handled a wide variety of employment law matters for employers, as well as for executive-level employees, before agencies, and state and federal courts.