Getting the signal yet?

By GUY LORANGER, Staff Writer

The shift supervisor was in his truck, driving to work, when he smashed into a woman's car on a Fulton County highway. The woman sued him, but his employer ended up on the hook.

During his deposition, the supervisor indicated he was engaged in a work-related cell phone call at the time of the accident. That was enough to hold the employer liable, the Georgia Court of Appeals ruled last October.

As similar cases spring up around the country, employers should be getting a clear signal: When their employees' cell phone use increases, so will the employers' exposure to vicarious liability.

"It will definitely be a more frequent theory of recovery," said Atlanta attorney Herald J.A. Alexander, who represented the woman in the case, Hunter v. Modern Continental Const. Co., Inc., which ended in a $750,000 settlement in February. "It's just a matter of applying the law to new technology."

Even though cell phone-related vicarious liability cases remain rare in North Carolina, employers and their attorneys should still take heed, according to William H. Sturges.

"If an employee is driving an automobile for the business of his employer, and he is negligent, the employer has to be liable -- that's just a general common law rule," said Sturges, a Charlotte attorney and past chair of the N.C. Bar Association's labor and employment law section.

"I would strongly suggest that employers have extensive driver safety programs, and they should add cell phone etiquette as part of that program and ensure their employees at least use headsets that would be a minimum."

GROWING THEORY

In a 2002 survey by the University of North Carolina's Highway Safety Research Center, respondents on average said that 27.4 percent of the calls they made in their car were work-related, with 6.4 percent saying all calls were for work.

Only 34.8 percent said they pulled off the road to use the phone.

For employers, that should raise concerns.

A Highway Safety Research Center report estimated that 1,475 cell phone-related crashes occur each year on the state's roadways, while studies published in the New England Journal of Medicine and British Medical Journal concluded that cell phones -- whether hand-held or hands-free -- made it four times more likely that a driver would get into an accident.

Plaintiff's attorneys have picked up on the trend.

Investigating whether the defendant was on the phone -- or dialing it, searching for it or being startled by its ring -- has become routine procedure in automobile negligence cases, said Mark R. McGrath, a personal injury attorney based in Research Triangle Park.

"It's a focus now, and it's going to become even more of a focus when you are looking for that proverbial smoking gun," he said. "The idea of a person who was so disrespectful of other people on the road that he was just jabbering away on the phone has real jury appeal."

Looking into whether the defendant was engaged in a company business call has also become routine, along with discovery of whether the employer encouraged or expected cell phone use, provided a phone or BlackBerry or paid bills for employees' personal cell phones, said Charlotte attorney Jeremy A. Stephenson, the vice-chair of the N.C. Association of Defense Attorneys' employment law committee.

"That makes it obvious that they expect the employee to use it, and that creates a real risk," he said.

Just a few of the examples from recent years in which the employer faced liability:

* A Pennsylvania stockbroker's employer was sued after he hit a motorcyclist while making "cold calls" on his cell phone -- a practice allegedly encouraged by the employer (the case settled for $500,000);

* Hawaii paid $2.5 million to a New Jersey tourist injured by a state employee who was driving while talking on a cell phone; and

* A Virginia law firm settled a $30 million suit after one of its attorneys allegedly hit and killed a 15-year-old boy while making a work call on her phone.

"The employer's only defense would be to say that they legitimately did not allow this conduct --they didn't just pay it lip service," Stephenson said.

POLICY SOLUTION

How does an employer do that?

It starts with placing a cell phone use policy in the employee handbook, said Stephenson, who often drafts such policies for companies.

"There's no reason for a company to draw a line in the sand and say they don't have anybody driving for the company, so they don't need one," he said. "When you already have 50 policies in your handbook, why not make it 51?"

Seattle-based Braun Consulting Firm suggests a few basic elements:

* Information about risks associated with cell phone use and a requirement that employees participate in a safety session;

* A mandate that employees stop or pull off the road before making or receiving a call except in emergencies or a requirement that employees use only hands-free phones; and

* Documentation, such as signed acknowledgment forms, that an employee receiving a company cell phone or reimbursement for a personal phone will obey company policy.

Stephenson suggests another element.

"Put some teeth into it," he said. "Have a statement that any violation of this policy may result in discipline, including termination."

However, a policy won't necessarily protect an employer from liability, said Alexander, the Atlanta attorney. The issue comes down to whether the employer enforced the policy or knew about or even encouraged the employee's cell phone use.

"The truth of the matter is that a written policy is kind of a cellophane shield when you say one thing and do another," he said.

The policy could also expose the employer to another type of liability, Stephenson warned.

"You couldn't make it a zero-tolerance policy, because the reality is that you'd end up firing the president and 99 percent of the company. You can't couch it that way. The best thing to do is to say, 'Don't do it, you may be disciplined.' Then, when it does come up, take it seriously," he said.

"Part of the problem would be that if you really did fire somebody for this, you would have to suspect they would come back and say, 'Everybody does this, but I'm the only one you fired.' You'd have to be careful about unequal enforcement. You'd have to be consistent."

NEGLIGENCE PER SE?

More cell phone-related liability cases could arise if North Carolina passed a law that banned the use of cell phones while driving. A statute could lead to negligence per se arguments.

Currently, six states and Washington, D.C., have banned the use of hand-held cell phones in cars.

North Carolina only prohibits cell phone use by school bus drivers and drivers under the age of 18, although a bill sponsored by Sen. Charlie S. Dannelly (D-Mecklenburg) would ban it across the board (with certain exceptions for emergencies, hands-free phones and law enforcement).

The bill, S. 1399, currently is stuck in committee.

"You would still have to prove causation," McGrath said, "but there's very little that's negligence per se in North Carolina, especially in automobile cases, so that statute would be very helpful."

Stephenson said that such a law should have no impact on employers.

"Employers always have an obligation to prevent unsafe conduct by their employees," he said, "and that's separate and apart from whether there is a specific law prohibiting the conduct."

Questions or comments may be directed to guy.loranger<@>nc.lawyersweekly.com.