Cell phones – Great New Technology or Latest Per Se Negligence?

January 2005

My pet peeve is seeing a driver attempting a left-hand turn in congested traffic … and talking on a cell phone!

On January 23, 2005, Joyce Pellino Crane, from the Boston Globe, wrote about Cooley Godward and a law suit settlement. The subject matter? Whether an employer is liable for damages resulting from an accident caused by negligent use of a cell phone? This is the first cell phone case which has come to the attention of this writer. And, I say that it’s about time!

Whether or not the hands-free operation of a cell phone prevents accidents is arguable. The National Highway Traffic Safety Administration estimates that 3 percent of cell phone owners are talking while driving at any given time. Of 6 million annually reported car crashes, half are related to driving while distracted, according to the American Automobile Association (AAA). The AAA suggests that it's not the act of holding the device, but rather the discussion that causes accidents.

Most of us focus on our discussion. 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 small but growing number of companies are publishing guidelines for cell phone use inside the office and the car, as some high-profile liability cases catch the eye of corporate America. "It's a hot liability topic," says Kathryn Lusby-Treber, executive director of the Network of Employers for Traffic Safety in Vienna, Virginia. "The company is certainly at risk. If they have an employee who's driving for business and they're in a crash, the employer can be held responsible for the crash."

Will these guidelines protect the company? Not necessarily.

In October 2004, Cooley Godward of San Francisco settled a $30 million lawsuit in the death of 15- year-old Naeun Yoon, who was struck and killed in 2000 on a busy highway outside Fairfax, Virginia, by one of its employees - a lawyer accused of making a business call on her cell phone while driving. After serving a year in jail and surrendering her law license, Jane Wagner was ordered to pay $2 million in damages to Yoon's family by a circuit court jury in Loudoun County, Virginia.

While the firm's insurance company paid $92,500, the firm was not held liable. However, the case of Yoon v. Cooley Godward has broader implications. This decision suggests that employers could be vicariously liable for the cell phone-induced distracted driving of their employees. Having a published policy against such use may not help; while one factor to consider, it’s insufficient in most cases. There is precedent for this thinking. Just take a look at sex harassment cases where the firm has a written policy against such actions, but is still held liable for lack of appropriate enforcement activity.

Perhaps the use of cell phones, Blackberries and other mobile technology should be reexamined to take advantage of their benefits while not exposing our law firms to damages and concomitant loss of reputation.

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