Driving + Cell Phones = Bad Call

American Association for Justice
2010 Annual Convention

Motor Vehicle Collision, Highway,
and Premises Liability Section

Vancouver
July 10-14, 2010

Article written by
Ira H. Leesfield

Click here to download the article in a .pdf format.

Cell phones and driving don’t mix, and the studies prove it. Numerous studies, including those published by the New England Journal of Medicine and the British Medical Journal, report that talking on a cell phone while driving substantially increases the risk of having an accident. In fact, studies have shown that drivers who are using cell phones have more accidents and slower reaction times than drivers who are legally drunk. Compounding the danger is the ever growing number of people using cell phones. The number of cell phone subscribers in the United States has grown from 40 million in 1996, to over 276 million in 2009.

  • Each year, cell phone distractions cause 600,000 crashes, 330,000 injuries, and 3,000 deaths. This works out to more than 1,643 crashes, 904 injuries, and 8 deaths per day.
  • By the end of 2008, 110.4 billion text messages were sent in the United States every month, more than ten times the number just three years before.
  • As many as 25% of automobile crashes are caused by driver distraction due to mobile phone usage.
  • Drivers dialing phone are 2.8 to 5.9 times more likely to crash/near miss; drivers texting are 23 times more likely to crash/near miss.
  • In 2008 alone, crashes caused by distracted driving cost over $40 billion.
  • On-the-job crashes cost employers over $24,500 per crash, $150,000 per injury, and $3.6 million per fatality.

As technology advances, more-and-more people are using their cell phones to conduct business while driving. Cell phones have expanded the temporal, geographic, and substantive scope of employees’ jobs. In addition to making telephone calls, employees are able to receive and send documents, e-mails, text messages, and even perform research from their hand-held devices. With cell phones, employees can work anytime in almost any situation, including while driving; and when they do so while driving, they substantially increase the risk of hurting or killing someone.

In recent years, there is an emerging trend in the law holding employers responsible for employees who cause accidents while driving and using a cell phone for work related purposes.

  • In 1999, a Smith Barney investment broker who was using his cell phone while driving to make “cold calls,” drove through a red light and struck and killed a young man on a motorcycle. Smith Barney settled the lawsuit for $500,000.00
  • In 2001, a Florida jury awarded $21 million to a passenger in a car that was struck by a salesperson who was using a cell phone while driving.
  • In 2004, a Virginia attorney hit and killed a teenage girl at 10:30 p.m., while using her cell phone to conduct firm business. Phone records from the attorney’s firm reportedly showed that she was making work-related calls at the time of the accident. According to the attorney, she never saw the girl and thought that she had hit an animal.
  • In 2007, International Paper Company settled a personal injury lawsuit for $5.2 million with an Atlanta woman who lost her arm after being rear-ended by one of the company’s employees. The employee was driving a company sedan and was using her company-issued cell phone at the time of the incident.
  • In 2009, a Prince George’s County jury awarded $4.1 million to the family of a 20 year old college student who was killed in a 2007 car accident involving an off-duty police officer. Cell phone logs indicated that the defendant either sent or received a text message in the moments before the collision.
Vicarious Liability - Respondeat Superior

The liability of the employer in the aforementioned cases is premised on the legal doctrine of Respondeat Superior. The Doctrine of Respondeat Superior holds an employer vicariously liable for the harm caused by the negligent acts of its employee acting within the course and scope of their employment.

Prior to the advent of cell phones, common law typically held that an employee driving to and from work, to and from lunch, or otherwise not engaged in traditional business related activities, was not in the course and scope of their employment; and as such, the employer could not be held liable for their accidents. A new niche is now being carved out in the law.

If the employee was using a cell phone for business related purposes at the time of an accident, the employer should be held responsible. This relatively new legal theory applies regardless of whether an employee is driving their personal automobile, or making a work related call outside of “normal” business hours.

Direct Liability - Negligence of the Employer

In addition to holding an employer vicariously responsible, the facts and circumstances of the case may warrant a count for direct negligence against the employer. The employer has a duty to exercise reasonable care for the safety of the public whenever its employees are acting within the course and scope of their employment. This theory of direct negligence should apply in the following situations:

First, an employer should be held directly liable if the employer encouraged or expected the employee to use a cell phone for work related purposes while driving, and an accident results. Second, even if the employer didn’t encourage the use of cell phones, if they knew, or should have known, that employees were using their cell phones while driving for work related purposes, and they failed to affirmatively act to stop the conduct, they should be held liable. Third, if an employer fails to adopt and implement policies, protocols and procedures for banning the use of cell phones and wireless devices for work related purposes while driving, that the employer is negligent if an accident occurs while an employee is driving and using a cell phone for work related purposes. Moreover, even where such policies exist, the practitioner should investigate and determine whether the employer adequately communicated the policy to its employees; whether the employer provided adequate training, instruction, and supervision regarding the policy; and whether the employer took adequate steps to prevent the use of cell phones by its employees for work related purposes while driving.

Investigation and Discovery

A claim against an employer only works if you can prove (1) that the driver was on the cell phone when the accident occurred, (2) that the driver was using the cell phone for work related purposes, and (3) that the use of the cell phone caused and/or contributed to causing the accident.

Meeting the burden of proof is not as easy. First, defendant drivers rarely admit that they were using a cell phone at the time of an incident. Second, the employer will deny that the defendant driver was using the cell phone for work related purposes or, assert in the alternative that the defendant driver was violating the employer’s policy banning the use of cell phones while driving. Lastly, the defendant will argue that the use of the cell phone was not the cause of the accident.

The majority of evidence that you need to prove your case against the employer is usually obtained through formal discovery after the lawsuit is filed, however, it doesn’t hurt to try to gather as much information as possible prior to filing the lawsuit. Attempts should be made to obtain the following as soon as possible:

  1. The Police Report.
    1. The police report may indicate that a cell phone was being used by the defendant driver. In some jurisdictions, the reports even have a box to check if a cell phone was being used.
    2. The police report may list a cell phone number for the driver. If you are able to obtain a cell phone number you can perform a search online to determine the cell phone provider. Once you have that information you can attempt to retrieve the cell phone records, but without a subpoena your chances are slim.
    3. The police report will list any passengers that were in the defendant driver’s vehicle. You can attempt to contact the passengers and inquire as to whether (i) the driver was using a cell phone, (ii) who the driver was speaking with at the time of the incident.
  2. Employment Information
    1. You may be able to determine the employer of the defendant driver through the police report or your own investigation based on information in the report.

      Typically, the vast majority of information that you need to prove your case will be obtained once you have filed the lawsuit and initiate formal discovery. The following should be obtained through formal discovery channels such as interrogatories, requests for production, subpoenas, and depositions:

      1. Cell phone numbers and cell phone providers for every cell phone in the possession, custody, or control of the driver on the date of the incident.
      2. Cell phone records from the cell phone providers, including records of all in-coming and out-going calls, texts, and e-mails. Note, some cell phone providers keep records for a limited period of time, therefore it is imperative to issue these subpoenas as soon as possible.
      3. Billing records from the employer for the employee driver.
      4. The identify of who paid for the cell phone and the cell phone plan. If it was the employer, this can be used to establish your direct liability case as well as your vicarious liability case.
      5. The identify of the recipients of any and all calls, e-mails, and/or text messages for the time period of the incident and contact those people to determine whether the calls were business related.
      6. Whether the employees of the driver’s company typically engage in business while using their cell phones while driving.
      7. Any and all policies, procedures, and protocols related to employees using cell phones, in particular while using cell phones while driving. To the extent that policies exist, the discovery should include determining how the employees are instructed and/or receive training on these policies, when is it provided, how often is it provided, by whom is it provided, and in what manner is it provided.
      8. The identify of any witnesses; whether passengers, bystanders, or co-workers of the defendant driver.

Courts have held that plaintiffs are allowed to request and obtain cell phone records of a defendant driver through discovery. It is also important to keep in mind that many states have now banned cell phone use while driving. In these jurisdictions, if an employee causes an accident while using a cell phone, the defendant’s behavior will be automatically considered negligent per se under the doctrine of the same name.

Affirmative Defenses & Causation Issues

Assuming that one can prove that the defendant driver was using a cell phone at the time of the accident, the employer is sure to raise several affirmative defenses in its response to the allegations including, (1) that the driver was not in the course and scope of their employment at the time of the accident (2) that the driver violated the employer’s policies as it relates to cell phone use and, (2) that the use of the cell phone did not cause the accident.

As it relates to the employer’s defense that the driver was not in the course and scope of their employment at the time of the accident, we have already discussed various discovery that should be sought to prove that the driver was using the cell phone for business related purposes. In sum, the cell phone records should provide the basis for proving that the call, text, or e-mail was business related.

Some courts have broadly defined “scope of employment”. A Virginia court had to decide whether an attorney who ran over and killed a 15 year old girl while talking on his cell phone with another lawyer at 10:30 pm was within the scope of his employment. The court determined that the attorney who caused the accident was indeed within his scope of employment because part of the defendant’s job consisted in logging billable hours, including time spent on the phone, therefore benefitting his employer.

As it relates to the argument that the driver violated the employer’s policies relating to using the cell phone while driving, this defense shouldn’t affect the vicarious liability count against the defendant. If business was being conducted, they will be vicariously liable. This defense principally applies to the direct negligence claim, however, it’s not a strong defense. Even if the employer had a policy that banned the use of cell phones for business related purposes while driving, there are numerous ways to counter this defense; some of which have been discussed herein. First, did other employees routinely engage in the same practice. If this is a common practice, the defendant would be hard pressed to argue that they didn’t know it was taking place. The Ostrich with its head in the sand defense is never a good defense. Second, if the employer knew that its employees were engaging in this practice, and if they did nothing further to deter it, then the defense should not stand. Third, how did the employer train, instruct, and supervise its employees as it related to this policy. If the employer simply has a 100 page policy manual that has one line that says “don’t use cell phones while driving,” that is not adequate.

As illustrated above, in Ford v. McGrogan, the employer was forced into a multimillion dollar verdict for its employee’s negligent use of a cell phone. International Paper Company, the employer, did have a ban on using cell phone while driving that was in effect at the time of the accident. Despite the production of their internal policies and procedures which the employee voluntarily disregarded, the employer was still held vicariously responsible for the defendant employee’s negligence.

On the issue of causation, the defense is likely to argue that the plaintiff cannot prove that using a cell phone causally related to the accident. In recent years, however, a number of research studies have been completed that provide evidence that the use of a cell phone while driving affects the ability of the driver to safely operate a motor vehicle. For instance, a study by the Insurance Institute for Highway Safety found that those who use cell phones while driving are 4 times more likely to get into crashes that cause serious injury. Several studies have shown that the human brain is incapable of fully concentrating on both driving and talking on a cell phone. These two tasks require the resources of several identical areas of the brain. One study states that “when people talk on the phone, they are doing more than simply listening. The words conjure images in the mind’s eye, including images of the person they are talking to. This decreases reaction time.” Moreover, studies also show that it doesn’t matter if the driver is using a hand-held or a hands-free phone, both are equally distracting.

A human factors expert should be able to elaborate on these studies and their findings, and tie them into your case. In addition, you should illicit testimony from the defendant driver that you can use to support the causation issue. For instance, the driver didn’t see the other car, or they didn’t see the light change from green to red. This type of testimony would support your causation argument.

In addition, witnesses, including passengers in the vehicle, may be of help. If a witness or a passenger in the vehicle saw the traffic signal, or the other vehicle approaching, but the driver on the cell phone did not, a juror could conclude the driver was distracted by their use of the cell phone.

In sum, whenever handling cases involving motor vehicle accidents, the practitioner should make it a point to investigate the issue of cell phone usage and the potential of holding the deep pocket employer liable for the employees negligence. Not only could this help compensate your client, but with enough pressure from litigation, corporations and employers may become more interested in ensuring and enforcing bans on the use of cell phones by their employees while driving cars; thus making the roadways a bit safer for all of us.