Georgia Injury Law Blog
October 29, 2007
Recently, the Georgia Court of Appeals reversed a grant of summary judgment to the defendant in an interesting case involving the use of a cell phone by an employee enroute to work.In Hunter vs. Modern Continental Construction Company, the employee shift supervisor was enroute to work when he was involved in a car accident with the plaintiff.Plaintiff sought to bring her lawsuit against not only the driver/supervisor, but his employer as well.
The employer moved for summary judgment (a dismissal of the case before it gets to trial) on the basis of established case law that driving to and from work is an act for the employee’s own purposes and not in pursuit of the employer’s business.
In order to understand the implications of this case, one must first understand vicarious (employer) liability law in general.In order to hold the employer liable for the negligent act of the employee, the plaintiff must show that at the time of the injury the employee was engaged in the master’s business and not on some personal private matter.The test is not that the act was done during the existence of the employment; but that the servant was at the time of the negligent act serving the master.In hammering out this law, Georgia courts have traditionally held that driving to and from work is not an act in service of the master.
However, in the Hunter case, the shift supervisor while driving to work answered the call of a co-worker calling in regarding the day’s business and perhaps to indicate that he would be running late.While testimony differed as to whether he actually took the call, a jury question arose as whether the use of that cell phone was done on behalf of the employer and whether answering the cell phone while driving distracted him and caused the accident. Thus, using a cell phone to conduct work business while commuting to work constitutes “work for the master.”
Cell phone technology allows employees to conduct business and to be available to conduct business at all hours of the day.More and more employees use their commute time to multi-task.This technology benefits the employer and arguably allows the employee more flexibility in his or her daily life.But it also expands the scope of liability of the employer should a car accident occur while the employee is on the cell phone.And well it should.
As of May of 2007, 236 million people subscribed to some form of wireless communication.Motorists on the road make forty percent of all cell phone calls.Increased reliance on cell phones has led to a rise in the number of people who use the device while driving.
A study done by the Harvard Center for Risk Analysis found cell phone drivers were responsible for 2600 traffic deaths per year and 330,000 traffic injuries.In a study done by the National Highway Traffic Safety Administration (NHTSA) twenty-five percent of all motor vehicle accidents were caused by driver distraction.A study done by The Human Factors and Ergonomics Society showed that motorists on hands free phones were 18 percent slower in braking time and 17 percent slower in regaining speed after braking than their non-cell phone using counterparts.
Driving while using a cell phone creates two dangers.First, drivers often take their eyes off the road while texting or dialing their phones.Second, drivers often become so absorbed in their phone conversations that they cannot concentrate on the road.
Cell phone use causes drivers to have “tunnel vision” or to stare straight ahead while driving.Also cell phone drivers also tend to “look, but not see” owing to the degree the conversation distracts them from the act of driving.
Employer liability for their employees driving and conducting business with cell phones is on the rise.In December of 2004, defendant Beers Skanska Inc. paid the plaintiff $4.75 million in a settlement in Fulton Superior Court for a cell phone related accident.In that case the employee reached over to a mounted hands free set to retrieve a Star 99 message.When he did so, he slammed into the back of a stationary sedan.This caused a chain reaction and left a man severely injured.Beers Skanska argued that their employee was “not on the clock” but rather commuting to work.The plaintiff successfully argued that Beers Skanska supplied the phone and the employee was responding to a work related message.
Employer liability for cell phone use arises in two ways.First, the employer may be vicariously liable when the employee’s negligent cell phone use causes an accident.Second, the employer may be liable directly for failing to have a cell phone use policy with its employees.
One way for employers to avoid direct or vicarious liability is to have a cell phone policy. Although the policy guidelines do not necessarily prevent accidents or potential liability, it may help encourage employees drivers to drive responsibly. The Automobile Association of America (AAA) has set the following guidelines for cell phone use while driving:
1. Recognize that driving requires full attention;
2. Become familiar with the phone’s features prior to driving;
3. Use the phone only if absolutely necessary;
4. Use only when safe to do so;
5. Ask a passenger to place the call;
6. Keep the conversation short;
7. Let the person on the other end know you are driving;
8. Don’t combine talking with other distractions;
9. Secure the phone in the car so that it isn’t a projectile in an accident.
As the Georgia Court of Appeals and Georgia jury verdicts and settlements have shown, employer liability expands when the employee gets in a car and even during off hours or during commute time conducts employer business on a cell phone.Significantly, if you are injured in a car accident and find that the offending driver was on a cell phone, find out whom they were talking to and why.Contact an attorney if you have been injured.Pre-litigation investigation may help determine if the employer is liable as well for the accident.