As a society, we’re not getting any smarter in terms of cell phone use and driving. In my book More Secrets of the Business of Law, published in 2006, 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 cell phone. Since that time, there have been many more.
The lawsuit that I discussed in my 2006 book involved, very pertinently for our purposes, the employee of a law firm. In 2000, according to a 2005 article by Joyce Pellino Crane of the Boston Globe, a lawyer employed by Cooley Godward of San Francisco was allegedly using a cell phone to make a business call when she hit Naeun Yoon, killing the 15-year-old pedestrian on a Fairfax County, Virginia, highway. In 2004, a case was brought against the lawyer and her law firm. The lawyer 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 the Wichita Eagle this month, the family of a Kansas doctor killed while jogging has sued the pizza delivery person who struck him. The suit alleges the pizza delivery driver was texting while driving or distracted The family has also sued 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 cell phone use while driving. Multimillion dollar awards include the following:
- $4 million in a 2009 case involving the death of a college student hit by an off-duty police officer driving his police car
- $8.7 million in a 2007 case involving an Illinois state policeman who killed two girls
- $4.1 million in a 2006 case involving an employee of an Illinois electrical contracting company who seriously injured an elderly woman
As the number of accidents involving cell phone use has grown, especially high-profile liability cases that have caught the eye of corporate America, more companies have published guidelines for cell phone use inside the car.
Many people argue for policies that prohibit handheld cell phone use but allow hands-free operation of cell phones. However, whether or not the hands-free operation of a cell phone 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 cell phone use is a best practices policy. However, even having a published policy against cell phone 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 where the 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 cell phone while driving.
Ed Poll is the principal of LawBiz Management and the creator of the new Life After Law coaching program.