Employer liability in a wireless world.

• Author: Stambelos, Patricia T.
• Position: Employee Liability

The use of cell phones, Palm pilots and other persona! electronic devices has become a significant part of our everyday lives. These devices have proven particularly important to businesses, such as accounting firms, where clients often insist on 24-hour service.

Unfortunately, the benefits of such technological advances come with a price. According to a 1997 study in the New England Journal of Medicine, drivers are four times more likely to have car accidents while using cell phones. The study also found that the risk was the same when drivers used "hands-free" devices.

THE WAVE OF LAWSUITS

Imagine that your employee is talking to a client via cell phone on his way home from the office and hits what he mistakenly thinks is an animal--but is a 15-year-old girl--and keeps driving. The girl dies. Cell phone records show that he was talking at the time of the accident, and time records reflect that he was billing a client for the time he was talking. The employee is charged with felony hit and run.

This occurred in Virginia and the family of the girl brought a $30 million wrongful death suit against the employer. The suit is still pending.

In a suit against lumber wholesaler Dykes Industries in December 2001, a Miami jury awarded $21 million to a woman who was severely injured by one of the company's salesmen involved in an accident while he was talking on his cell phone.

In Pennsylvania, a Smith Barney stockbroker--who was talking on his cell phone on the way to a non-business dinner--hit and killed a 24-year-old motorcyclist. Testimony revealed that the firm expected its employees to make "cold calls" on personal time. The plaintiff alleged that the firm was negligent because it encouraged employees to use cell phones without providing training on the potential hazards and risks.

Smith Barney settled with the victim's family for $500,000.

And in an action involving a state employee who was allegedly talking on her cell phone when she hit a tourist, causing permanent brain damage, the state was found partially liable and paid $2.5 million.

THEORIES OF EMPLOYER LIABILITY

Plaintiffs have been suing employers under these theories of liability:

1. The employer requires or encourages employees to be available to clients at all times and either provides cell phones or reimburses employees for use of their personal items; or

2. The employer knows that employees are using phones while driving and fails to ensure that they are doing so safely.

And...