Firms Formulate Guidelines for Employee Cell Use

Ross Guberman was quoted in following article because he wrote an investigative piece on the case Yoon v. Cooley Godward cited below.

By Joyce Pellino Crane
The Boston Globe
January 23, 2005

Somewhere near Winslow, Maine, is a scenic view of China Lake where Monsanto Co. salesman Robert Pierpont regularly makes client calls from his cellphone – one of many locations at which he pauses along his route.

“I know all the scenic, beautiful views,” he said. He should. While Pierpont traverses 3,500 miles a month across New England and eastern New York selling animal health products to dairy farmers and veterinarians, Monsanto says he cannot conduct business on his cellphone unless his car is stopped.

St. Louis-based Monsanto is one of a small but growing number of companies publishing guidelines for cellphone use inside the office and the car, as some high-profile liability cases catch the eye of corporate America.

“It’s a hot liability topic,” said Kathryn Lusby-Treber, executive director of the Network of Employers for Traffic Safety in Vienna, Va. “If [companies] don’t have a policy in place, they should. The company is certainly at risk. If they have an employee who’s driving for business and they’re in a crash, the employer can be held responsible for the crash.”

An April 2004 survey conducted by the Society for Human Resource Management, in Alexandria, Va., showed that of 379 responding companies, 40 percent already had a cellphone policy in place and another 12 percent expected to develop a written policy within six months. But even more companies may be reconsidering their positions after reading about a lawsuit against an employer involving an employee’s cellphone call inside an automobile.

In October, the San Francisco law firm Cooley Godward settled a $30 million lawsuit in the death of 15- year-old Naeun Yoon, who was struck and killed in 2000 on a busy highway outside Fairfax, Va., by one of its employees – a lawyer accused of making a business call on her cellphone while driving. After serving a year in jail and surrendering her law license, Jane Wagner was ordered to pay $2 million in damages to Yoon’s family by a circuit court jury in Loudoun County, Va. While the firm’s insurance company paid $92,500, according to its attorney, John McGavin of Fairfax, the firm was not held liable.

However, the case of Yoon v. Cooley Godward had broader implications. It suggested that employers could be “vicariously liable for the cellphone-induced distracted driving of their employees, even if phone calling is not within the scope of employment,” noted Ross Guberman, an adjunct professor at The George Washington University Law School who has written about the case.

“The classic case of vicarious liability,” he wrote in an e-mail to The Boston Globe, “is a truck driver who runs into a pedestrian while asleep at the switch. But with the civil suit over the Yoon tragedy, law firms and corporations are now terrified that they could be hit with a million-dollar judgment simply because one of their employees swerves and kills someone while talking about work.”

Most troublesome from an employer’s viewpoint, is that there may be no avoiding such liability. Though a cellphone policy demonstrates social responsibility and possibly makes employees more aware of the dangers of using phones while driving, attorneys say it would do little to absolve the business from liability should a catastrophic event occur.

“I don’t think an employer can insulate themselves by having a policy against cellphone use. It would just be a factor,” said Boston attorney Michael Gilman who specializes in employer management law. “I don’t think having a cellphone policy or not would make much of a difference in terms of the ultimate liability.” Gilman added that the company’s insurer would have to pay the claim, regardless.

That poses new challenges for companies as technological devices such as Palm Pilots, Blackberries, and cellular phones in the workplace become more entrenched and indispensable. On one hand, these gadgets advance work-related activities. On the other, they could be the tempest in the teapot.

“Companies certainly love the idea that people are using the phones in the car on the commute,” said John Challenger, chief executive of Chicago’s Challenger, Gray & Christmas Inc. “But there is additional exposure to companies and even the government is taking up the safety issues and liabilities of cellphones in cars.”

In December, state Representative Cory Atkins, Democrat of Concord, filed a bill requiring Massachusetts drivers to use headsets when speaking on a cellphone.

“You don’t really have control of the car unless you use both hands when you’re driving,” she said.

Though the bill is controversial, with detractors arguing that hands-free doesn’t prevent accidents, Massachusetts would not be the first state to pass such a law. According to a 2003 study from the National Conference of State Legislatures, 17 states have passed similar legislation.

Whether or not the hands-free operation of a cellphone prevents accidents is arguable. In May 2004, there were 174 million US wireless phone subscribers, according to Erin McGee, spokeswoman for Washington, D.C.-based CTIA – The Wireless Association. The National Highway Traffic Safety Administration estimates that 3 percent of those phone owners are talking while driving at any given time.

Of 6 million annually reported crashes, half are related to distracted driving, according to the American Automobile Association. But Mantill Williams, AAA’s director of Washington public affairs, said it’s not the act of holding the device, but rather the discussion that causes accidents.

“If you’re distracted by an intense conversation,” he said, “whether you’re using a headset or not, you could still get into an accident. Sometimes you’re not even seeing what’s in front of you because your mind is somewhere else.”

A 2002 report from the National Conference of State Legislatures suggests that hands-free devices for cellular phones would save 10,000 lives by 2010.

Margery Myers, spokeswoman for Hingham-based Talbots, said her company also requires that drivers refrain from using a cellphone unless pulled over to the roadside or a rest area. “I think it’s just basic common sense,” she said.

J. Abra Degbor, spokeswoman for Verizon Wireless in Woburn, said her company offers the same advice to employees as to customers.

“When you’re behind the wheel, safe driving is your only responsibility,” she said. “If necessary, turn off your cellphone or activate call forwarding, or let it go to voice messaging, if traffic conditions warrant undivided attention.”

Regardless of whether there’s a policy, however, a company may not be able to separate itself from an employee’s reckless behavior, said personal injury attorney Matthew Connell of Dedham.

“… it may influence the work staff,” he said, “but as far as shielding the employer from any liability, it would not do that. That would be against public policy.”

Reprinted from The Boston Globe.

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