Cell Phone Use and Employer Liability

By John Viggiani, Esq.*

Key Points:

• Cell phone technology can increase employee productivity and enhances customer service.
• Employers must protect themselves from liability related to cell phone use by employees while driving, through implementation and enforcement of cell phone policies.

In today's 21^st Century, a premium is put on technology and responsiveness. This reportedly helps with, not only productivity, but also customer service. More and more employers, whether they employ salesmen, electricians, plumbers, contractors, police, firemen or truck drivers, want their employees to be responsive. This means the sooner the better. With technology driving our society to be faster and quicker, this can, and is, resulting in potential liability for employers.

In today's technology age, rapid response is key. As a result, a number of employers either provide cell phones, some type of direct connect radio or allow their employees to carry and use their own phones while on the job. In combination with the operation of company vehicles on company time or performance of company business during operation of their own vehicles, the use of this technology can increase or change the liability picture of the employers.

The potential liability and exposure created by this new communication technology is only heightened where employers have cell phone policies signed by their employees but do not enforce them. For example, a company may direct that employees only utilize the company cell phone while on the job, but will not verify or follow-up, even when it knows that its employees possess and use other cell phones at work, and even when its employees operate equipment, motor vehicles or tractor-trailers.

In cases and claims, we are seeing more and more incidents where, when an accident occurs, one of the first questions asked is whether or not the employee involved in the accident had a cell phone and whether he or she was using it at the time of the accident. In connection with a request for and review of the cell phone records, it may easily be determined whether the employee was talking on the phone while driving and/or receiving and responding to emails, or receiving or responding to text messages.

Also relevant to recent cases and claims is whether the employer had a cell phone policy that was being followed and enforced. Was the employer following up to see if employees were adhering to the policy? Did the employer have knowledge of another cell phone and its use?

All of these issues have relevance to employee/driver distraction, which, or course, affects perception and reaction times. Drivers are distracted by their dialing, talking, emailing or texting. These activities take an employee's eyes off the road and/or distract from the job at hand. They prevent an employee from properly perceiving a situation, which could cause or precipitate an accident.

These issues may enhance claims against the employer. They may lead to direct claims for negligence against the employer, such as those for negligent training, supervision and retention. They may also lead to claims for punitive damages against the employee driver and employer. Even if they are not able to assert a claim for punitive damages, plaintiffs and claimants are using the cell phone issue to support claims of delayed perception and reaction time to try to inflame or upset a jury and possibly increase a jury award or settlement.

In Florida, there already have been appellate court decisions relating to these issues. Employer liability has been found when the employer:

1. provides an employee with a cell phone for company business and it is used while driving to call, text or email;
2. fails to have a cell phone policy; and/or
3. fails to enforce its cell phone policy.

The National Highway Safety & Motor Vehicle Association and the Federal Motor Carriers Association have commissioned two studies on cell phone use and driver distractibility. These studies have specifically targeted tractor-trailer drivers. In these 2009 and 2010 studies, cameras were placed at different locations inside the tractor-trailers to monitor the drivers. The activities caught on camera showed drivers engaging in various activities, including talking, texting and emailing on cell phones.

The studies took all of the driver activities and compared them with not only actual accidents, but situations where potential accidents were averted. The studies assigned risk factors to each of the activities. Specifically, with regard to cell phones, the activities included:

• Reaching for a cell phone;

• Dialing a cell phone;
• Talking on a cell phone;
• Receiving a text or email; and
• Responding to a text or email.

The first study concluded that there was a higher risk, 23.4 percent, of being involved in a motor vehicle accident while texting and dialing on a cell phone because, at such a time, a driver's eyes were off the roadway. It indicated, however, that when drivers were actually talking on their cell phones, there was no increased risk of an accident or potential accident.

As a result of this latter information, the second study was commissioned. In this second study, instead of breaking down the individual uses for a cell phone, the uses were combined into one category to show that cell phone "usage" was an increased risk factor for accidents. It is this increased risk factor and information that plaintiffs are utilizing.

Unfortunately, all a jury typically hears is that a cell phone was being used while operating a vehicle at the time of the accident. As a result, employers need to implement strong cell phone policies, including mandating that cell phones should not be used while driving in terms of either talking, texting or responding to emails. If an employer already has an existing cell phone policy, it should be reviewed to ensure that it is comprehensive and specific and that the policy is signed and understood by the employee.

Moreover, if an employer knows that an employee is using a cell phone while driving, that an employee is carrying a personal cell phone in addition to a company cell phone, appropriate discipline should be imposed. Unless a policy is enforced, it is no defense.

It should also be noted that a number of states have started instituting no texting or emailing laws while driving. If someone is found texting or emailing while driving in one of these states and it leads to or contributes to an accident, it will likely precipitate a higher settlement amount and/or verdict.

Today, prompt customer service and increased productivity are worthy goals often aided by cell phone technology. However, employers must protect themselves from the perils of such technology created by employees texting, talking or emailing while driving.

Defense Digest, Vol. 19, No. 1, March 2013