Welcome back to our discussion on cell phones, driving and the risk of employer liability. In the previous installment, we talked about how you can be sued for negligence if you let your workers use cell phones when they drive company vehicles. Let's now focus on some of the actual cases where this has happened.

Where the Cases Come From

So far, all of the cell phone negligence cases have come from the U.S. But let me warn those of you north of the border not to be lulled into a false sense of security. Your turn is coming.

In the words of one Canadian lawyer: "Our negligence law follows the same basic principles as the U.S. law. So it's just a matter of time before the cell phone negligence lawsuit reaches a Canadian court."

The Cell Phone Negligence Scorecard

There have been at least half a dozen negligence lawsuits filed by victims of traffic accidents allegedly caused by a worker's talking on a cell phone while driving. Here are highlights from five of them:

1. $16.2 Million against Lumber Company

A lumber company salesman is talking on his cell phone while driving his Ford Explorer to a sales meeting. He's so distracted that he drives through an intersection without checking for oncoming traffic. He smashes into a Buick driven by a 78-year-old woman. The victim is put on a ventilator and eventually dies of her injuries. Her family sues the salesman and the lumber company. The jury finds the driver guilty of negligence and holds the company vicariously liable. It orders the company to pay $21 million in damages. The company settles the case for $16.2 million, the limits of its liability insurance coverage [Bustos v. Dyke Industries, Miami, Dade County Civ. Ct. No. 01-13770 CA30].

2. $500,000 against Brokerage Firm

A stock broker is trying to make a sales call on his cell phone while driving to a restaurant. He is so caught up in the call that he runs a red light and drives over a 24-year-old motorcyclist with fatal results. The victim's family sues the broker's employer, Smith Barney, for negligence. Smith Barney settles the lawsuit for $500,000 [SL018 ALIABA at 1108].

3. $1.5 Million against State Government

A special education teacher who works for the State of Hawaii is discussing business on her cell phone while driving. She runs over a tourist from New Jersey while he's crossing the highway. The victim suffers permanent brain damage. The company is found 20 percent liable for the injuries and has to pay $1.5 million.

4. Law Firm Sued for $30 Million

A lawyer talking on her cell phone while driving her Mercedes Benz runs over a 15-year-old girl. The girl dies. The lawyer keeps right on driving, later claiming that she thought she had hit a deer. The girl's family is suing the Virginia law firm, Cooley Godward, for more than $30 million [Youn v. Wagner et al., Loudon City Court, CL 24892].

5. Company Must Stand Trial

A worker gets into an accident while driving to work. He was talking on his cell phone at the time. The victim sues the employer for negligence. The employer denies responsibility and asks the court to dismiss the case without a trial. Normally, driving to and from work is not considered to be work-related activity for which an employer is vicariously liable. But in this case, the phone records show that the worker was talking to the employer when the accident occurred. So the court rules that the worker was in fact "acting within the scope of his employment" and orders the employer to stand trial for negligence [CLO White Co. v. Lattimore, 590 S.E.2d 381, (Ga. Ct. App. 2003)].

Conclusion

The first three parts of this series illustrate the liability risks faced by companies that let their workers use cell phones when driving on company business. Next week, we'll provide a solution to the problem: We'll show you how to draft a legally sound and enforceable company policy regarding worker use of cell phones.

POP QUIZ

Cell Phone Lawsuits from the Passenger Side of Company Vehicles

Question
All of the cell phone negligence lawsuits cited above were filed by a pedestrian or another motorist who was victimized by a traffic accident caused by a worker's cell phone use. But suppose the victim who sues isn't a third party but a co-worker who was sitting in a passenger seat of the company vehicle when the accident happened. Would the co-worker win a negligence suit against the company?

Answer
Probably not.

Explanation 1
A cell phone negligence case by a co-worker against a company would most likely be dismissed without even going to trial. The reason: Workers' compensation. Under the basic workers' compensation scheme, workers aren't allowed to sue their employers for injuries even if those injuries are the direct result of the employer's negligence. The tradeoff: The worker is assured of coverage for all work-related injuries - even injuries that are not caused by an employer's negligence.

Explanation 2
But even if workers' compensation wasn't a bar, there's another reason that passengers would have a hard time suing drivers (and companies) for cell phone negligence. The defendant would have a defense. They could claim that the passenger was guilty of what's called "contributory negligence" - that is, partially to blame for the accident. A judge or jury might find that a reasonable passenger would have recognized the danger of riding in a vehicle when the driver was talking on the cell phone and thus should have:

• Insisted that the driver put down the phone;
• Made the driver stop the vehicle until the conversation ended; and/or
• Gotten out of the vehicle.

PEARLS OF WISDOM FROM SAFETY JOHN

Try to Be a Feather in OSHA's Cap

"Safety John"

By John Lowrie

Despite others' opinions about OSHA, I've always believed that, as an employer, it is wise to set up some type of relationship - OSHA calls it "partnering" - with one's local OSHA office. As long as we are committed to safety, we should have no fears about asking for advice.

Frankly, I have ALWAYS had positive results with this tactic in every location I have worked. I've asked OSHA reps to share information at special events, such as plant-wide "Safety Day" training or company-wide Safety Conferences. Whenever we have the opportunity to partner with OSHA, and when we have positive safety results, we make OSHA look good. And in turn, OSHA will want us to look good.

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