May 21, 2012
Employers liable when employees talk and drive
21 May 2012
Posted by Andrew Kantor
If an employee causes an accident while using a cell phone, her employer might find itself on the short end of a lawsuit — and a big one at that. Holding companies liable for employees who have accidents while talking or texting is a developing trend, what with about a quarter of car accidents involving cell phones.
Distracted-driving lawsuits now are part of the legal landscape, and the lawyers who bring them are increasingly going after the deep pockets of corporations that let their employees talk or text while behind the wheel.
And it doesn’t matter if it’s a personal phone, company car, or anything else — if the person was on company time, “the corporation is within the reach of a distracted-driving lawyer.”
And companies are settling, rather than going to trial.
“People think there’s a good defense here by saying, ‘Everybody does it,’” [Texas lawyer Todd] Clements said. “Well, that’s not true, because the jury doesn’t want everyone to do it.”
[J]urors are eager … to punish corporations in what amounts to a primal act of self-preservation: By awarding huge amounts of money to plaintiffs, they encourage corporate bans on calling and texting.
And with GPS-enabled phone records, it’s fairly easy to connect phone use with a crash. As one expert put it, “When suddenly your phone is no longer moving, I know pretty certainly when the crash occurred and if you were talking around the time of the crash.”
These days, everyone knows about the dangers of talking/texting and driving, so corporations can’t use the “we didn’t know” defense. Thus plaintiff’s lawyers have a huge opening.
“Then you’re able to use the argument that you knew better but you didn’t do better, and that’s the one that really ticks a jury off,” Clements said. “Any employer who doesn’t believe they’re in a box now is foolish.”
Now, how this might apply in a typical Realtor independent-contractor situation I can’t tell you. The question is, would you be willing to bet your firm on the answer?