Cell Phones May Increase Liability Risk

Fifteen-year-old Naeun Yoon was riding in her mother’s mini-van arguing with her 14-year-old brother on a highway in Virginia. At one point, her mother stopped the car on the side of the road to control the bickering. Both teenagers got out of the car and started walking in opposite directions on the side of the road.

Little did they know that a 33-year-old attorney was speaking with a client on her cell phone, swerving and driving in a reckless manner, to the point of striking and killing Naeun. Last October, a jury ordered the associate to pay the family $2 million. The employer settled for a confidential amount.

In Florida, a jury ordered Dykes Industries of Little Rock, Ark., to pay nearly $21 million to a 78-year-old woman who was injured when one of its salesmen struck her vehicle while he was on his cell phone as he traveled between appointments. The employer’s insurer reportedly paid $16 million five days following the verdict on behalf of the company and $100,000 on behalf of the salesman.

Although these cases have been seen as warning signals to businesses across the country as an area of potential liability, they actually do not expand the current doctrine of respondeat superior. They represent, perhaps, a growing opportunity for a plaintiff to recover from an employer when an employee is doing company business.

Certainly, companies reap the benefits of employee productivity while the employees are on the move. It is apparent when we see more and more people conducting business on their phones while in their cars. Victims of such vehicular accidents are bringing lawsuits against the drivers as well as their employers, but, in some cases, the line between professional and personal pursuits can become blurred.

For example, in Pennsylvania, brokerage firm Smith Barney settled a case for $500,000 when a stockbroker dropped his cell phone on a Saturday evening. While attempting to find it on the floor of his car, he ran a red light, striking and killing a 24-year-old motorcyclist.

Even though the company had not provided the cell phone, other employees testified that the employer encouraged sales calls on personal time to potential customers who were difficult to reach. The company settled the matter to avoid the risk of taking it to a jury.

In 2002, Hawaii paid $1.5 million when a public school special education teacher, on her cell phone with a parent, hit a New Jersey tourist, causing permanent brain injuries.

With cell phone use, the traditional nine-to-five workday certainly has been redefined and with it, liability has been found even when the employee may not have been "on the clock."

Cellular phone use continues to grow at an estimated rate of 40 percent per year. Harvard University’s Center for Risk Analysis estimates that cell phone use causes 1.5 million accidents and 2,600 deaths annually.

In an effort to cut down on these statistics and the distraction, the Chicago City Council passed a controversial ordinance earlier this year that requires hands-free cell phone use while driving. Hundreds of tickets have been issued for violations in the fist months of enforcement. Whether this will have an impact on accident statistics waits to be seen.

In an effort to limit liability – although it provides no absolute defense – some companies are setting standards for cell phone use for their employers. For instance, some companies designate certain employees whose job responsibilities require them to be available at a moment’s notice. Others are not expected to pick up cell phone calls when in the car. Some companies are posting the National Traffic Safety Council standards on cell phones at the office or reminding employees at staff meetings and training sessions.

Nevertheless, principles of vicarious liability law apply in Illinois, and it is well settled that an employer will not be held liable for the acts of an employee unless the employee was engaged in the employer’s business and not upon some personal matter. Alms v. Baum, 343 Ill.App.3d 67, 71 (1^st Dist. 2003). Courts have held that this means the injury must have been inflicted in the scope of the employee’s employment, Lulay v. Parvin and Walter Brothers, 2005 WL 2077513 (decided, Aug. 25, 2005).

In the absence of special circumstances, going to and from work in an automobile generally serves the purposes of the employee and not the employer. Kinney v. Continental Assur. Co., 42 Ill.App.3d 263, 266 (1^st Dist. 1976). Special circumstances, however, may include conducting company business on a cell phone.

An appellate court in Illinois reversed a trial court that excluded evidence that one of the parties may have been on a cell phone at the time of an auto collision, holding that it may have had a bearing on the jury’s allocation of fault. Hiscott v. Peters, 324 Ill.App.3d 1114, 754, N.E.2d 839 (2^nd Dist. 2001). The case was remanded for a new trial.

Wireless communication certainly has redefined the workplace. At the very least, it has made multi-tasking a way of life. We’ve all witnessed soccer moms trying to control a van full of active children, people catching a bite to eat while driving and women putting on make-up in the car.

Although the recent cases on cell phone use probably won’t change people’s habits or an employer’s demands of employees, it might make reasonable people consider the level of distraction when conducting critical business on the road.