As Suits Mount

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As a society, we're not getting any smarter in terms of cellphone use while driving. In my 2006 book, "More Secrets of the Business of Law," I discussed the first lawsuit that I'd heard about involving employer liability for an accident caused by an employee's negligent use of a cellphone. Since that time there have been many more.

The suit that I discussed involved, very pertinently for our purposes, the employee of a law firm. In 2000, according to a 2005 article in The Boston Globe, a lawyer employed by Cooley Godward in San Francisco was allegedly using a cellphone to make a business call when she hit Naeun Yoon, killing the 15-year-old pedestrian on a highway in Fairfax County, Virginia.

In 2004, a case was brought against the lawyer and her law firm. The attorney served a year in jail, surrendered her law license, and was ordered to pay $2 million in damages to Yoon's family by a circuit court jury in Loudoun County, Virginia. Cooley Godward settled.

Although I haven't read about another case with the same set of lawyer-related facts, I have certainly read about many cases with details that mirror these facts in other industries.

Most recently, according to an article in last month's edition of the Wichita Eagle, the family of a Kansas doctor who was killed while jogging — by a pizza delivery person who was texting while driving — has sued not only the delivery person but also the employer, arguing that the employer did not properly supervise its employees and did not warn them of the dangers of texting and driving.

A 2012 publication by the National Safety Council, Employer Liability and the Case for Comprehensive Cell Phone Policies lists many more examples of lawsuits against employers for employee cellphone use while driving. Multi-million-dollar awards in the last decade include:

  • $4 million — An off-duty officer driving his police car killed a college student.
  • $8.7 million — An Illinois state policeman killed two girls.
  • $4.1 million — An employee of an Illinois electrical contracting company seriously injured an elderly woman.

As the number of accidents involving cellphone use has grown, especially high-profile liability cases that have caught the eye of corporate America, more companies have published guidelines for cellphone use inside the car.

Many people argue for policies that prohibit handheld cellphone use but allow hands-free operation of cellphones. However, whether or not the hands-free operation prevents accidents is debatable. The American Automobile Association has suggested that it's not the act of holding the device but rather the discussion itself that causes accidents.

Most of us focus on our discussions. And when we're driving and talking, the talking usually commands our attention. Even if you're using a headset, you can still get into an accident. Why? Because, frequently, the conversation prevents you from seeing what's right in front of you. Obviously your mind is elsewhere.

A comprehensive total ban on cellphone use is a best-practices policy; however, even having a published policy against cellphone use while driving may not help. Although it is one factor to consider, it is insufficient in most cases.

There is precedent for this thinking. Just take a look at sexual harassment cases in which a firm has a written policy against such actions but is still held liable for lack of appropriate enforcement activity. Combining a policy with educational training is a smart move for any company, as the National Safety Council publication noted.

As either a large firm or even a solo practitioner, you must protect your business from employees (including yourself) who do not heed the commonsense wisdom of refraining from using a cellphone while driving.

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