Employees Using Cell Phones While Driving Poses Major Liability Risk For Employers

by Christopher Reid & Isaac Hof

Cell phones enable busy individuals to conduct business far beyond the confines of their workplace and well past their regular working hours. In addition to speaking with clients or co-workers, cell phones allow employees to draft e-mails, upload documents, and send text messages — all while driving.  The downside?  Drivers who text or e-mail in the car are twenty-three times more likely to crash than those who do not.  Unfortunately, this risk does not scare many, as nearly 1 in 4 motor vehicle accidents involve a cell phone.  While teenagers are often held to blame, the high number of cell phone related accidents is due in large part to another, often overlooked demographic: working commuters attempting to maximize their travel time while driving to and from work.

These commuters pose an obvious risk for other drivers and pedestrians, but they also present a significant financial threat to their employers.  That is because under Pennsylvania law (and nearly every other state’s law), an employer may be held financially responsible for a motor vehicle accident caused by the negligence of its employee so long as the accident occurred while the employee was “acting within the scope of his or her employment.”  This concept is known under the law as vicarious liability.

Cell phone driving has changed the landscape for vicarious liability.  Before cell phones, employees typically were considered outside the scope of their employment whenever they drove to or from work.  Thus, if an employee caused an accident while on his way to work because he ran a stop sign, the employer could not be held responsible for the injuries caused in the accident since the employee was commuting to work, and hence, outside the scope of employment.   In that same circumstance, however, the employer may be held liable if the employee ran the stop sign because he was distractedly using his cell phone for work-related purposes (or, conversely, distractedly using a work-provided cell phone for personal reasons).  With employees often spending several hours per day in the car traveling to and from work, cell phone driving drastically expands the scope of employment and, in turn, increases the risk of liability for employers.

Under the concept of vicarious liability, discussed above, the employer will be held liable even though it technically did nothing wrong.  In other words, whether the employer was negligent is irrelevant for purposes of vicarious liability.  However, there are circumstances when an employer is liable for his employee’s conduct not necessarily because the employee was negligent but as a result of the employer’s negligence.  This concept is known as a direct liability.

For instance, in the context of cell phone driving, an employer may be held directly liable for a cell phone related accident involving his employee if it turns out that the employer had failed to implement a policy prohibiting its employees from using cell phones while driving for work-related purposes.  And even that may not be enough.  While such a policy is helpful, it is but one factor that may be considered for purposes of determining direct liability.

Other factors include:

  • Whether the employer encouraged (directly or indirectly) employees to use cell phones for work-related purposes while driving.
  • Whether the employer knew, or should have reasonably expected that employees use their cell phones for work-related purposes while driving and did not attempt to stop the conduct.
  • Whether the employer failed to adequately inform or warn employees about the risks of using cell phones while driving.
  • Whether the employee hired or entrusted an employee whose driving records should have indicated a likelihood of negligence (e.g., employee that caused accident previously had received citations for reckless driving).

Notwithstanding the proven danger of cell phone driving, employees continue to conduct business on their handheld devices while driving.  As that practice increases, so does the potential for employer liability.  It is incumbent upon employers to actively discourage their employees from working remotely while driving.  Otherwise, employers bear the risk of trading minor productivity for major liability – a risk that can only be described as penny wise, pound foolish.

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