While driving to a restaurant on a Saturday night, the driver dropped his cellular
phone, bent down to retrieve it, ran a red light, and killed a motorcycle rider.
However, the main target of the ensuing wrongful death action was the driver's
employer, not the driver. Although the accident occurred outside of normal business
hours, the plaintiffs alleged that the brokerage firm that employed the driver
encouraged its employees to do business by phone in their cars any time of day,
and that the driver was trying to call a client when his vehicle collided with
the motorcyclist. The case was settled out of court and the plaintiffs received
a substantial sum.
The
fact that an employee is provided with a cellular phone or pager and is on‑call@ at the time
of an automobile accident may put the employee A on the job, @ even where
the employee is not using a cellular phone when causing the accident. In one
such case, a salesman caused an accident while driving home in the evening.
The court found that the employee was acting in the scope of his employment
primarily because he was required to carry a beeper and to use it to respond
to customers' needs until 7:30 p.m.
For
workers' compensation purposes, another court has held that a state employee
was acting in the course of his employment when he was in an accident while
driving home from work, despite a general rule that while commuting to and from
work an employee is not acting in the course of employment. An exception to
that rule was found because the employee was on call 24 hours a day and his
vehicle was equipped with a cellular phone and a short‑wave radio so that
he could be contacted while in transit.
On‑call
status with a cellular phone will not necessarily mean that an individual is
acting in furtherance of employment, but it will take significant countervailing
facts for a court to avoid that conclusion. For example, a police officer was
ruled to be acting outside his employment although he caused an accident while
driving a police vehicle to respond to a page received by cellular phone. The
court cited the overriding personal nature of the officer's actions based on
several facts: (1) he was driving the vehicle back from a golf tournament that
he had attended on his own time; (2) the accident was in a neighboring town
where he had no authority as a police officer; and (3) he was intoxicated and
unfit for duty.
These
cases are especially significant for employers who expect their employees to
be working the phones, or to be prepared to do so, virtually around the clock,
and for whom driving time is regarded as just another good opportunity to conduct
business. The cost of squeezing out this extra productivity may well be greater
exposure to tort liability when the employee's concentration on business interferes
with safe driving. Possible solutions include simply not reimbursing employees
for cellular phone use and writing clear policies that will encourage employees
to A drive now, talk later.@ Competent legal advice should be sought before
such policies are implemented.
