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Legal dangers of cell phones

Miranda Du

You may have heard about the dangers of using cell phones while driving.

In fact, New York State and several countries, including Australia, Great Britain and Spain, have outlawed the use of cell phones while driving.

Although Nevada has not enacted similar legislation, Nevada employers who require or permit their employees to use cell phones to conduct company business may be liable for injuries or damages caused by their employees’ use of cell phones to conduct business while driving.

Under a legal principal called vicarious liability, an employer is liable for the harm to a third party caused by its employee if that employee was acting within the course and scope of his or her employment at the time of the accident.

In addition, that third party may also claim that the employer is negligent for encouraging, or requiring employees to use cell phones while driving without adequate training or consideration of safety issues.

Relying on these two legal principals, plaintiff ‘s personal injury attorneys have targeted employers.

Some of these lawsuits have led to shocking results:

* In 1999, Smith Barney paid $500,000 to settle a lawsuit filed against it by the family of a motorcyclist killed by a broker doing business on his cell phone.

* The State of Hawaii paid $1.5 million because one of its employees, a public school teacher, was driving and talking on her cell phone when she ran into a man walking across the highway.

* In Arkansas, a jury entered a verdict against a lumber company for $21 million on behalf of a 78-year old woman who was disabled after her car was struck by a car driven by a salesman who was on his cell phone.

The case was later settled for $16.2 million.

* In early 2000, a law firm was sued in a $30 million wrongful death case when one of its associates killed a 15-year old girl while talking to a client on her cell phone.

Although these cases, and others like them, might suggest banning employees from all cell phone use while driving, this is not always the appropriate solution for all employers.

Even though a “no cell phone use while driving” policy will provide you, as an employer, the greatest protection from legal claims, such a polity is not only impractical but will most likely be honored by its breach.

In deciding what type of cell phone use policy to adopt, employers should weigh the savings of employee efficiency that come from the use of cell phones against the physical dangers and potential liability.

If your company expects, requires, or encourages cell phone use, you should strongly consider creating a cell phone use policy that encourages safe use.

Such a policy might include:

1.

Banning dialing while driving;

2.

Permitting cell phone use only in cases of emergency;

3.

Requiring the use of a hands-free headset while driving;

4.

Informing employees that they are neither required nor expected to use a cell phone while driving; and/or

5.

Requiring or encouraging employees to park their vehicle before they make a cell phone call.

Alternatively, if your company would prefer to create a policy that would ban all cell phone use while driving, there are certain additional steps you can take to increase your protection from liability.

For example, if your company provides its employees with cell phones, you should require, as a condition of receipt, that the employees sign an acknowledgment form which states that the phone is not be used while driving.

Also, company-owned phones should have a sticker warning stating that using the phone while driving is dangerous and prohibited.

No matter what type of policy you adopt, make sure your employees are aware of that policy and be sure it is consistently enforced.

By taking steps now to deal with the potential problems that could stem from increased cell phone usage by employees, you could be protecting your company from being subjected to a future lawsuit or potential large damage award.

Miranda Du is a partner in the Nevada law firm of McDonald Carano Wilson and is chair of the firm’s Employment/Labor Law Group.


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