According to Florida statute, scope of employment is defined as performing service for which the employee was hired and doing something that is serving the employer or is reasonably incidental to the employment.  Note that scope of employment alone is not enough to create liability for the employer; it must also be proven that the employee was negligent.  However, case law has demonstrated that the potential for such vicarious liability arising out of cell phone use is a real and serious exposure:

Beers Skanska

A Georgia construction company agreed to a 4.75 million dollar settlement because an employee, while commuting to his job, reached over to a mounted, hands free cell phone that was provided by his employer.  As he was punching in numbers to retrieve a message he slammed into a stationary sedan causing a chain reaction crash that left a man badly injured.  Even though the employer claimed the employee was “not on the clock” at the time of the accident, the phone was provided to the employee by the employer and therefore held vicariously liable for the negligence of the employee.

Smith Barney

The investment firm Smith Barney paid a $500,000 settlement to the family of a motorcyclist killed in Pennsylvania in an accident caused by an employee that had been making sales calls on a cell phone at the time of the crash.  The employer had not provided the cell phone, but it was argued that the employer encouraged its brokers to make business calls outside of normal business hours.

These and other cases demonstrate the potential liability for employers in what we consider to be two areas:

Third Party Liability:  If an employee cause injury or damage due to negligent use of a cell phone for business purposes, it can be claimed that he or she was acting within the scope of their employment and in the conduct of your business, creating the potential for your company to be sued and held responsible for damages. 

Injury to Employee:  While not yet clearly established, it stands to reason that if an employee while using a cell phone for business purposes is acting within the course and scope of employment and injured as a result of such activity, he or she could potentially seek medical and indemnity benefits through the workers' compensation system.

Insurance protection in these areas primarily exists in your general liability, automobile liability, non-owned automobile liability, and workers’ compensation lines of coverage.  Subject to their various insuring agreement, exclusions, terms, and conditions, each in distinct ways protect you as an employer for the vicarious third party liability arising out of employees acting within the scope of their employment in the conduct of your business. 

Risk Management Techniques

Obviously, liability cannot be eliminated, but proper risk management techniques can provide you with a stronger position to defend such a claim.  To help mitigate your exposure to loss through this vicarious liability arising out of the use of cell phones by employees, you should consider the following: 

 

Employer Owned Cell Phones.  Any property owned by an employer and provided to a employee is considered “chattel” (such as a cell phone), and the employer has the duty to provide proper training, instruction, and supervision in the use of such property.  Do not provide any property to an employee without clear and documented instruction in the proper and safe use of the property.

Safety Guidelines.  You should consider establishing and enforcing the following safety guidelines in the use of cell phones in the conduct of company business:

Consistent Training: Provide and document periodic training (at least annually) on proper and safe cell phone use to establish a consistent pattern of employee education.  Be sure to address the dangers of cell phone use while driving and go over any state or local legislation pertaining to cell phone use while driving.

Use While Driving: Permit cell phone use in a vehicle only while off the road or in a parking lot or at least limit cell phone use in a vehicle while moving to hands free devices only.  Require all calls received while driving to go directly to voice mail.

Written Safety Procedures:  Include in your written safety program a section that addresses safe and proper use of a cell phone while in a vehicle. 

 

Conclusion

Public surveys reveal that:

§ 87% believe that using a cell phone impairs a person’s ability to drive;

§ 80% admit that their competence behind the wheel  suffers  when distracted;

§ 71%  support prohibitions of the use of hand-held phones while driving;

§ 67% support insurance penalties for being in a crash while using a cell phone;

§ 61% support increased fines for traffic violations involving cell phone use; and

§ 57% support a ban on all wireless phone use while a car is moving.

This of course demonstrates that a jury will not be sympathetic toward negligence arising out of the use of cell phones.  You as the employer represent a deep pocket when this occurs within the scope and course of employment and have a duty to use reasonable care in how your employees use property you provide for their use.  Your best defense is a proactive understanding of this exposure and taking reasonable steps to reduce the risk of loss.

 

Note:  A notice of regulatory guidance was published in the Jan. 27, 2010 Federal Register (75 Fed. Reg. 4,305) concerning a ban on commercial truck and bus drivers from sending text messages from cellular devices while driving.  The new policy does not apply to talking on cellular phones or affect civilian motorists. Truck and bus drivers who text while driving their commercial vehicles will be subject to civil or criminal penalties of up to $2,750.

The immediate ban stems from a new interpretation of existing law that gives the Federal Motor Carrier Safety Administration the authority to regulate the safety of trucks and their drivers. DOT will undergo separate rulemaking processes to codify the immediate ban on texting by truckers and bus drivers and to look into regulation of other forms of distracted driving.

Comments