McTexLaw McPherson and Associates Real Estate Asset Protection Law Firm Attorney

Does Your Business Have a Cell Phone Policy?

So what happens when this employee is driving home after business, in his full size SUV, and hits the 4 door spec Gimp family car? Sue everyone in sight, of course, including the employer. Would this be covered by the employer’s insurance policy? If the Gimps allege that the act of using the cell phone was an intentional act, there may very well be coverage issues.

But how likely is this? Have I just gone off the deep end here? Unfortunately not. Cases like this have already been filed. Smith Barney agreed to a $500,000 settlement involving a broker sued in 1999 after he struck and killed a motorcyclist, while talking on his cell phone as he drove. A nurse and her employer were sued after she caused a car wreck by reaching for her cell phone. In that case, the jury released the employer, but only after finding that the nurse was on her own time and making a personal call. In Virginia, a $25 million wrongful death case was filed against a law firm whose attorney struck and killed a 15 year old while that attorney was talking on her cell phone.

Cell phone usage isn’t just a basis for liability. At trial, the fact of cell phone usage and its role in an accident could be used to inflame the jury in an attempt to increase the punitive damage award.

How does an employer corral this risk? Put in place a written cell phone usage policy that can be handed to the jury, showing that the employer has considered the risk, and has advised its employees that safety is more important than using the cell phone. In developing a policy, look at three things:

(1) the benefits to having employees use cell phones;

(2) whether a complete ban on cell phone usage by employees while driving is sensible; and

(3) if not, what limitations would work.

A limited policy could, for example, tell employees when it’s OK to use a cell phone. Here are some ideas:

ban dialing while driving
give the employee discretion as to when to use a cell phone while driving, and when not to, clearly put the burden of safe talking on the employee if and when they use a cell phone while driving, and
provide that the employee assume the risk when they talk and drive.

If the employer expects or requires cell phone usage, it would also be helpful if the employer supplies appropriate, safe equipment.

And the single most important thing to do in developing a cell phone usage policy is to write it down and hand it to your employees, because you never know when you’re going to need to hand it to a jury, and if you haven’t first handed it out to your employees, coming up with the policy after an accident is simply too little, too late.

Every employer I know wants their employees to act in a safe, wise manner. But I can still hear the plaintiff’s lawyer arguing that the primary concern of the employer isn’t safety, it’s dollars. Profit. Money. Greed. The thought of having to write a policy about when and how to use a cell phone, which is really just common sense, seems like overkill. But are you willing to bet a large amount of money, at least your insurance deductible, that a jury will agree with you in the face of the plaintiff’s argument? You increase your chances of success by having the common sense policy in writing for the jury to see and read. At the least, don’t make it easy on the plaintiff’s lawyers to get your money.