COMMUNICATION: Taking the fall for a call – If an employee gets in an accident while on a cell phone, who’s responsible?

Cell phones are everywhere. Kids use them to keep in touch with their parents (and constant contact with their friends); adults use them to order take-out and call friends (just like their kids); and employers issue them to employees as a “perk” or as part of the job.

In 1985, two years after the technology emerged on the market, only 345,000 people in the United States owned and operated them. Today, approximately 80 million people in this country have cell phones, according to the NHTSA (National Highway Traffic Safety Administration). With this growing use of cell phones, the responsibilities and liabilities for users–especially for employees and employers–have also increased.

Of those who currently own or use wireless telephones, the NHTSA says 85 percent operate them while driving. Cell phones allow drivers to conduct business on the road, call for assistance, report emergencies, convey information about hazardous conditions, and report reckless or drunk drivers from the road. NHTSA studies have indicated that the use of cell phones reduces the response time to automobile accidents and actually saves lives.

However, using a cell phone while driving is a distraction, and a 1997 study from the New England Journal of Medicine found drivers using cell phones four times more likely to cause an accident than other drivers. This included hands-free phones, but the study did not explore mechanical distractions, such as dialing.

The NHTSA has stated that drivers who use cell phones are as dangerous as drunken drivers. However, a ban on cell phones has not been recommended; rather, the need for individual responsibility and care has been stressed.

So far, the federal government has not enacted any statute or mandate governing cell phone use, but several states and municipalities have passed laws prohibiting driving while talking or passed laws imposing restrictions on cell phone use.

In Michigan, a driver using a cell phone may face monetary penalties for causing an accident while using a cell phone, as well as adding more points on the individual’s driving record.

We know an individual is responsible for his or her own driving, but the question arises: If employers require or provide cellular phones to employees on the road, are the employers also liable for resulting accidents? And is this only if the call is business-related?

Regardless of whether any law or regulations are enacted concerning the use of cell phones, employers who require or otherwise permit employees to conduct company business while driving could be subject to liability if the employee is acting within the scope of his or her employment when involved in an accident.

A brokerage firm recently settled a case with the family of a motorcyclist who was killed when one of the firm’s brokers caused an accident while trying to dial a client. The driver, on a Saturday evening, was on his way to a non-business related dinner. The plaintiffs alleged that the company had a policy encouraging its employees to do business in their cars anytime of the day. The company did not provide employees with cell phones, but other employees testified that brokers regularly made client calls or cold calls on personal time. The company believed it could beat the “scope of employment” claim, but the brokerage firm decided to settle the case, rather than take it to a jury.

Employer liability for accidents involving employees is not a new concept. Employees, while on the job or sometimes enroute to the job, have involved employer liability for their actions. Dominos Pizza faced lawsuits several years ago when it pushed its drivers to maintain a “30 minute guarantee” for delivery. If the drivers failed to deliver the pizzas within the time frame, they had to pay for the pizzas personally. As a result, many drivers were involved in accidents.

Employers may now face liability for injuries or damage caused by employees who use cell phones while driving on company business. Employers who demand that their employees work anytime, anywhere, including while traveling in their cars, may be subject to tremendous liability.

For workers’ compensation purposes, one court has held that a state employee was acting the course of his employment when he was in an accident while driving home from work, despite a general rule that commuting to and from work is not usually within the course of employment.

An exception to that rule was found because the employee was on call 24 hours a day and his vehicle was equipped with a cellular phone and a short-wave radio set so that he could be contacted while in transit.

The fact that an employee is provided with a cellular phone or pager and is on call at the time of an automobile accident may put the employee “on the job,” even where the employee is not using a cellular phone when causing the accident. In one case, a salesman caused an accident while driving home in the evening. The court found that the employee was acting in the scope of his employment primarily because he was required to carry a beeper and to use a cell phone to respond to customer needs until 7:30 p.m.

On-call status with a cellular phone will not necessarily mean an individual is acting in furtherance of employment, but it will take significant countervailing facts for a court to avoid that conclusion.

For example, a police officer was ruled to be acting outside his employment, although he caused an accident while driving a police vehicle to respond to a page received by a cell phone. The court cited the overriding personal nature of the officer’s actions based on several facts: he was driving the vehicle back from a golf tournament he had attended on his own time; the accident was in an area where he had no police authority, and he was intoxicated and unfit for duty.

Put it in writing…

Consequently, management should consider implementing policies regarding cell phone usage by employees on company business.

Policies should be included in the employee handbook. Some ideas include:

1. Do not reimburse employees for cell phone usage.

2. Require employees using cell phones to pull over while driving.

3. Install hands-free cellular equipment.

4. Issue periodic bulletins as part of the company’s safety program urging employees to exercise common sense when using cell phones.

5. If the company provides cell phones to employees, as a condition of receipt, require the employee to sign an acknowledgment that the cell phone is not to be used while operating an automobile or other equipment.

A violation means the end of employment.

6. Place a sticker on company-owned cell phones warning that using the phone while driving is dangerous and should only be done in an emergency.

7. Establish a policy regarding cellular phone use (whether employer or employee owned) in motor vehicles.

Employees, too, can do things to make their driving safer:

* Know the features of the cellular phone, including speed dial and redial.

* Use a hands free device.

* Position the phone within easy reach.

* Let the other person know you’re driving, and suspend the call in heavy traffic or hazardous weather conditions.

* Do not take notes or look up numbers while driving; pull off the road first.

* Place calls while stopped in traffic, or ask a passenger to dial for you. Do not pick up calls in heavy traffic.

Kathleen Shannon is a Traverse City attorney, specializing in small and mid-sized business law, estate planning, and real estate law. She is also an adjunct professor teaching law and related courses at the graduate and undergraduate level for several Michigan universities. This article is for information only and is not intended as legal advice; (231) 946-4600; shannon@torchlake.com. BN

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