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Employers Beware: Are your Employees Using Cell Phones While Driving?

Each year, hundreds of thousands of serious and sometimes fatal car crashes occur as a result of "distracted driving." For the majority of these crashes, the cause of the distraction was due to mobile phone use behind the wheel. And, despite the fact that the effect and level of the distraction have been compared to that of driving under the influence, as a society, the serious dangers associated with distracted driving do not seem to have fully set in. Similarly, the serious legal issues surrounding an employer's possible liability from distracted driving by its employees have generally gone ignored by Pennsylvania employers. The fact remains that the costs associated with distracted driving crashes are far-reaching and almost limitless in value.

It has long been established in Pennsylvania that an employer can be liable for the acts of its employees in certain situations.  Generally, this liability is limited to situations where the employee is acting within the scope of his or her employment and acting in such a way that furthers the employer's interests. For example, a pizza delivery driver who gets in a car crash while out delivering a pizza would generally be found to be acting within the scope of employment and furthering the interests of the employer, thereby creating the potential for liability for the employer.  However, if that same driver got in a crash while out taking a joy ride during a break from work, the employer would most likely not be liable. 

In today's society, the connection between cell phone and work is almost endless. And, while the ability to conduct work related activities over your mobile phone could increase worker productivity, it also can create risks for the employer. In fact, a very strong argument can be made that while using a cell phone for work related purposes, an employee is within the scope of employment and acting in furtherance of the employer's interest. Taking the pizza delivery driver example a step further, imagine a situation where the pizza shop requires their delivery drivers to have and use cell phones in case of changes to delivery instructions or mistakes with orders, and while fielding such a call from his or her boss, a driver gets in a serious accident. Similar facts play out nearly every day, and plaintiffs' attorneys in personal injury negligence actions have already begun to construct and mold discovery requests to build just such a claim.  Preservation of evidence letters are frequently being sent out to place an employer on notice of the possibility of a potential lawsuit. 

For employers and their counsel, an internal policy must be put in place on the front end to protect against this type of liability.  The policy should prohibit employees from all mobile communications while driving, particularly email or text messaging.  As with any such internal policy, all employees should be required to sign off that he or she has received the policy, understands it, and agrees to abide by it. 

Of course, as with any policy, it is only as good as the extent to which the employer enforces it.  In a recent case out of Texas, a woman was awarded $24 million from Coca Cola, $14 million of which was punitive, after the company was found to have not properly enforced its cell phone policy, which lead to the accident that caused her serious injuries.  And, while Pennsylvania has not directly ruled on such a case, until some direction is received from the General Assembly or courts, employers must take it upon themselves to protect against any possible exposure.  

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