“Distracted driving” has gained significant attention in recent years as a serious threat to public safety. The term refers to operation of a motor vehicle with attention divided between the road and a mobile electronic communication device, typically a cell phone. According to the U.S. Department of Transportation, around 3,092 people died in auto accidents involving distracted driving in 2010, and another 416,000 drivers, passengers, and pedestrians were injured. States and municipalities are cracking down on the problem, passing a variety of laws and regulations to restrict or prohibit distracted driving. Businesses must carefully consider their own liability for the actions of their employees, who may get into accidents while distracted. Knowledge of local distracted driving laws, combined with strong cell phone use policies, can help businesses prevent employee accidents and mitigate or avoid liability.
The legal doctrine of respondeat superior, which translates as “let the master answer,” holds that an employer may be liable for the actions of an employee, if the employee was acting in the ordinary course of business, performing the employee’s regular job duties. In interpreting this standard, courts have adopted a quite expansive view of what actions are within the scope of an employee’s job duties. Acts that have a reasonable relationship to an employee’s job duties, or that have an appearance that a reasonable observer would connect to the employee’s job, will often lead to employer liability under respondeat superior.
Bloomberg BNA described three recent cases in which a connection, or the appearance of a connection, to an employee’s job duties led to employer liability:
– An off-duty police officer, driving a police cruiser while texting, was involved in a fatal crash. A court held the city liable because of the use of the police car.
– An employee talking to her husband on the phone while driving a company-owned car caused a fatal crash. A jury held the employer liable.
– An employee successfully argued that the employer should be liable for the crash that occurred when the employee was using a personal cell phone, while driving a personal vehicle to a non-work-related event, because the calls were work-related.
All fifty states, the District of Columbia, and many cities have enacted laws or ordinances restricting some form of distracted driving. Texas, for example, bans cell phone use and texting by young and novice drivers, while the City of Austin goes further and prohibits texting by all drivers. Businesses must know these local laws in order to craft an effective policy to manage their risks of liability. An employer may not be liable for an employee’s actions if the employee acted well outside the scope of employment. Violation of a traffic law may not be enough to overcome respondeat superior liability. The National Safety Council, in a recent report, recommended that employers enact cell phone policies that are stricter than local distracted driving laws. This would have the dual effect of protecting employees from accidents and protecting the company from liability. Employees violating the policy would be acting outside the scope of employment.
Prism Risk Management provides businesses and organizations with risk and loss prevention consulting and offers services in loss control planning. To learn how our team can help your organization, contact us today online or at (512) 901-0070.
Web Resources:
Employer Liability and the Case for Comprehensive Cell Phone Policies (PDF), National Safety Council, 2012 (source)
More Blog Posts:
The Risks of Restricting Employees’ Social Media Access: How the Internet is Affecting the Interpretation of Labor Laws, Prism Risk Management Blog, June 19, 2012
SEC Disclosure Guidelines Urge Businesses to Disclose Not Only Cyberattacks, but Also Risks, Prism Risk Management Blog, May 21, 2012
Proposed “Consumer Privacy Bill of Rights” Could Protect Businesses Using Cloud Computing, but Also Makes Them Accountable to Employees, Prism Risk Management Blog, May 14, 2012
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