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|Overview of the Current Situation and Conditions of Cell Phone litigation for employers.|
|USA||Created: 2 Dec 2007|
Braun Consulting News. News on Personnel, Labor Relations and Benefits
Overview of the Current Situation and Conditions.
Cell phone litigation is one of the new types of litigation springing up all around the country. Whenever there is a vehicle or other type of accident and a cell phone is involved you can bet a law suit may not be far away.
If an employer provides cellular phones, or if cellular phone use is a necessary part of a job, then that employer can be liable for problems created by their employee's use of cell phones while driving or otherwise working for the employer.
Even if employees are not officially on company business, and in some cases not even making a business call, employers can still be held liable if an accident involves a cell phone provided or permitted by the employer.
Some States, Cities and Counties are enacting their own "negligent driving" laws relating to, among other things, cell phone use while driving in a vehicle. Since laws are different in different areas, and new laws being enacted on a regular basis, employers are often creating policies that universally cover any situations involving use of cell phones related to company business or on company time.
And, don't forget that employer's also have a duty under most all state safety laws as well as OSHA to take proper steps and establish policies that insure worker safety. That includes safe use of cell phones.
There is some validity to the concern for cell phone use while driving or working.
A 1997 study reported in the New England Journal of Medicine indicates that drivers are four times more likely to have an automobile accident while using a cell phone...even if it is one of the "hands free" type of phone.
With the current climate as it is, many employers are implementing cell phone policies. We will cover some of those in this article.
Case Studies and Recent Rulings.
Some of the cases recently involving liability issues and cell phone use have had settlements for large amounts of money.
Consider the following:
One of the more notable cases involving use of a cell phone involved a Smith Barney stockbroker (Robert Tarone) in Pennsylvania who hit and killed a 24 year-old motorcyclist - a father of two. Tarone was driving and talking on his cell phone on the way to a non-business related dinner. The company did not provide its employees with cellular phones, and there was no evidence that the employee was using his cell phone at the time of the accident.
Mr. Tarone maintained that he was on the phone making "cold calls" when the accident occurred. Since other employee's testified that making "cold calls" on personal time (and even on a personal cell phone) was often expected of a stockbroker in order to contact hard to reach individuals, his employer was held by the plaintiff to have been liable.
The company believed that it could defeat the plaintiff's vicarious liability claim by showing that the employee was not acting within the scope of his employment at the time of the accident. However, the plaintiff also alleged that the firm was negligent when it encouraged employees to use cell phones without training them on the potential hazards and risks.
The firm decided to avoid the potential risk that an impassioned jury might make in a judgement, and awarded the victim's family a $500,000 settlement to assure that it would have a guaranteed cut-off on damages. No legal judgement was made in this case, but clearly a messy legal battle could have ensued from this large gray area of laws and liabilities concerning cell phone use by a company employee who had an accident while on the phone.
In this case a good written policy along with a procedure outlining safe operation of the cell phone would have strengthened defendants position that it was not liable.
In another case Dykes Industries of Little Rock lost a $20.9 million lawsuit for personal injuries sustained by a citizen in a car accident where a Dykes employee was using a cell phone at the exact moment of the accident.
Cooley Godward, a Virginia-based law firm, was slapped with a $30 million wrongful death suit where an employee of theirs was conducting business on her cell phone when she struck and killed a fifteen-year-old boy with her car.
The State of Hawaii agreed to pay $2.5 million as its share of liability for an accident involving a state employee who allegedly was talking on her cell phone when she hit a tourist from New Jersey and caused permanent brain damage to him. The state was found twenty percent liable for the plaintiff's injuries.
Information on Employer Liability.
Some notable points on employer liability involving the use of cell phones are listed below:
Employers can be liable for problems or accidents created by an employee's use of cell phones while driving if a company provides the phones, or if cell phone use is a necessary or encouraged option as part of their job.
Employers can incur liability whether or not the call is personal or business related.
Risks fall into two categories: claims by third persons and claims by employees.
Employer liability in cases involving a third party is based on a legal principal called vicarious liability. It provides that an employer is responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time that the accident occurred.
Plaintiffs often claim that an employer is directly negligent for its own conduct in encouraging or permitting employees to use cell phones for business without adequate training or consideration of safety issues.
Employers are now facing increasing claims by employees for health problems allegedly associated with cell phone use. This is happening even though the science appears inconclusive and contradictory. The issue regarding damage to a person who uses a cell phone will only be resolved by scientific study to come but, with the popularity of the "class action" suit by plaintiffs bar there will probably be litigation before there is solid science.
Workers who use cell phones while on the job have begun to file workers compensation claims and lawsuits based on the theory that radio frequency radiation from cell phones may lead to various forms of brain cancer or other maladies.
Training and a firm company policy help, but are not an assurance that a company will not be charged and held liable for the negligent conduct of its employees while they are using a cell phone.
"TYPE=PICT;ALT=button"Policy Examples and Issues.
Considering all of the evidence we have presented here it should be clear by now that any company in which employee's use cell phones should have a clear policy and documented training.
Below are some liability considerations and examples of elements of existing cell phone policies:
On the extremely cautious side, some companies either strictly prohibit the use of cell phones for business purposes while operating a motor vehicle, or if necessary, require the use of a "hands-free" phone.
Cell phone policy should inform employees of the potential health risks associated with the use of a cell phone, and even suggest or require using a hands-free phone.
Some companies could require, as a condition of receipt, that the employee sign an acknowledgment that these phones are not to be used while operating automobiles or other equipment.
Company owned cell phones may carry a sticker warning that the use of the phone while driving is dangerous and should be done only in an emergency.
Some policies require employees to take precautions such as dialing phones only while stopped or pulling off of the road before making or receiving a call.
(One can wonder if an accident happened on the side of the road whether there would be a lawsuit claiming the company shouldn't have made the employee pull off the road!)
A policy may require training on cell phone safety. A brief training session or a simple booklet may be a good way to answer any questions asked by employees.
Employers should maintain documentation, including written acknowledgements of their company policy, from employees when they are issued cell phones or related equipment. All training should be documented and records kept in personnel files.
Employers who reimburse employees for business calls made from their cell phones may require employees to certify that they did not use the phone in any way that violates company policy. Such certification can be added to the reimbursement form.
Policy could state that any violation of subjects the employee to disciplinary action. It should be demonstrated that the employer is serious about this issue.
Policies should be firmly enforced.
It has become increasingly important for employers to establish a firm policy on cell phone usage related to employment.
Litigation in this area will only increase.
Even though there is no guaranteed defense to liability in any situation, an employer with a strong cell phone policy will be in a far better position legally than the employer who has no policy.
And finally, not only should there be a policy, but it should be documented, disseminated and strictly enforced.
Please Note: Since we originally published this article we have been contacted by a company by the name of "Hands free for you". They produce a device that works with your cell phone such that many of the dangers of cell phone use are reduced. This is accomplished by making the process of using the cell phone a voice only activity. We have not used the device but have added this link so our clients and friends have an opportunity to learn about voice activated devices.
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|Source: Catherine Gamba|
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