Getting your company to adopt a ban on cell phone use by employees driving company vehicles is a no-brainer as far as safety is concerned. But it's also bound to be an unpopular measure and one that's hard to sell to management. Invoking the threat of liability can help you overcome resistance. The problem is that few states (or provinces) ban the use of cell phones while driving; and even where such bans are in effect, they're limited in scope since they allow for hands-free devices. (See the map in TOOLS for a visual depiction of the state of cell phone laws across the U.S.)

So where can a safety director turn for support? Answer: The source of liability for accidents caused by cell phones is the law of tort. Last week, we explained what tort law is generally all about. Now let's look at how it applies to cell phones.

The Risk of Negligence Liability

Negligence is the Sun King of torts. It's the tort everybody has heard of, the one that spawns the most litigation. Negligence law is fairly straightforward: Persons are guilty of negligence if:

• They owe a person (whom we'll refer to as a victim) a duty of reasonable care;
• They don't live up to that duty;
• The failure to show reasonable care causes the victim to get hurt; and
• The victim suffers damages.

Just about anything can be negligence, from failing to signal a turn to leaving a banana peel on a crowded train platform.

Negligence can be committed by individuals or companies. This exposure to liability is a major concern for all companies and the reason they need liability insurance. Of course, a company is really an amalgamation of the individuals who work for it. So, when companies are sued for negligence, it's usually because one or more of its managers or employees did something wrong.

Cell Phones & Negligence

Okay, let's apply these principles to cell phones. Driving distracted while talking on a cell phone can be negligence if it results in a traffic accident in which somebody gets injured. And, if the driver is driving a company vehicle and doing his job, not just the driver but his company can be liable.

Example: One of your workers is driving a company van. He's on his way to deliver materials to a construction site. He's talking on the cell phone to his supervisor getting detailed drop-off instructions. He's so caught up in the conversation that he drives right through a STOP sign and plows over a pedestrian crossing the street. The victim is left paralyzed as a result.

The victim could sue the driver for negligence. But he probably doesn't have a lot of money. So the victim and her lawyer would likely look for a deeper pocket to sue: like the company that hired him and let him do his job in a dangerous manner. And the victim would have a strong case. She could make at least two arguments for holding the company liable:

1. The Company Was Directly Negligent

The victim could claim that the accident was the result of the company's own negligence. Letting workers talk on cell phones when they drive is a violation of the duty of reasonable care because it exposes other motorists and pedestrians to the risk of traffic accidents. Thus, the victim could argue that the company's failure to ban cell phone use was negligent.

2. The Employee Was Negligent and the Company Is Responsible

The victim could also try to pin responsibility for the accident on the company using a theory called vicarious liability. Under this theory, a company is liable for injuries caused by their agents or representatives if they're negligent while doing their jobs (or, as lawyers describe it, "acting within the scope of their employment"). The victim in our example would have a strong chance of winning a vicarious liability claim against the company because:

• The driver of the van was the company's employee and thus its agent;
• The accident was the result of the driver's negligence in running the STOP sign; and
• The negligence took place while the driver was doing company business and thus was within the scope of his employment.

Conclusion

The above example isn't just speculation by a lawyer. It's patterned after actual negligence cases that have worked their way through the courts. The Monday after Memorial Day, in Part 3 of this series, we'll look at the lawsuits against companies involving traffic accidents caused by employees on cell phones.

YOU MAKE THE CALL

Who's Responsible for Supervisor's Negligence?

By Glenn Demby

What Happened

A construction company hires a subcontractor. Both sides agree to make a supervisor who works for the subcontractor in charge of safety at the site. The subcontractor pays the supervisor's salary and charges the construction company for his services. A motorcyclist riding past the site gets hurt as a result of the supervisor's negligence. He sues both sides and wins $161,000 from each. The construction company and subcontractor blame the other for the supervisor's negligence and sue each other to get back the money they owe the victim.

Question

Who won?

Answer

The construction company. The supervisor was the subcontractor's employee. And even though the construction company "borrowed" him, the employer is still on the hook for his actions, according to the NW Territories Supreme Court.

Hardisty v. 851791 N.W.T. Ltd., [2004] N.T.S.C. 70.

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