One of the dark realities of this “instant service” environment is that multi-tasking does not mix well with being behind the wheel of a car, where many producers spend an inordinate amount of time. According to the U.S. Department of Transportation statistics, inattentive driving (eating, putting on make-up, attending to children, and using cell phones and other wireless or electronic devices) accounted for 6.4 percent of crash fatalities in 2003. With the annual double-digit growth of cell phone users, presumably that percentage will be even higher as new data is gathered.

Aside from the physical trauma of hitting or getting hit by fellow users, the potential civil liability issues to businesses are unsettling. Although only a handful of high-profile cases have gone to court, employers are justifiably concerned about their liability for accidents caused by their employees.

Open to Liability

Attorney Martin Stern, Director of the General Liability Department at the Ft. Lauderdale office of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, P.A., said that cell phone litigation is the newest trend in employer liability. “Attorneys are now asking who owned the cell phone, and whether it was being used for any work-related business. The answers to these questions can determine whether the deep-pocket employer is somehow liable for the accident.

“Generally, if the device is used for business, whether it's owned by the employer or the employee, the employer has liability exposure if the employee gets into an accident while using it,” Stern said.

In a report on the topic, the Insurance Information Institute noted: “Under the doctrine of vicarious responsibility, employers may be held legally accountable for the negligent acts of employees committed in the course of employment. Employers may also be found negligent if they fail to put in place a policy for the safe use of cell phones.”

The consequences can be monumental. While laws continue to be drafted and case law develops, it appears that juries are increasingly unsympathetic to the person chatting away.

In June 2007, a Palm Beach jury awarded a husband $21.65 million in the death of his wife when her vehicle was struck in the rear on the Sawgrass Expressway, causing her to cross the median and into the travel lanes of oncoming traffic. She was then struck by two other vehicles and died at the scene. According to cell phone records, the driver of the other car was using a cell phone when the accident occurred. The jury was out less than two hours.

In December 2007, International Paper Co. agreed to pay a $5.2 million settlement to a Georgia woman who was rear-ended by one of its employees. The employee was driving a company car and talking on a company cell phone at the time of the accident. The settlement was reached even though the employee had violated her company's policy of requiring the use of hands-free headsets while driving.

In December 2001, a Miami-Dade jury awarded a woman and her husband almost $21 million after plaintiffs' counsel argued that the defendant was so distracted using a cell phone that he made no attempt to stop, and slammed into the back of their car. The attorneys presented the subpoenaed cell phone records at the trial. The case was ultimately settled for $16.1 million.

Stern noted that civil liability is neither new, nor confined to cell phones. “If a driver is within the scope of employment [and causes an accident], whether a phone is used or not, the employer would be liable. What happens when you put cell phones into the mix is that it can expand the scope of employment.

“For example, it's 8:00 p.m., when a person would not normally be working. He makes a business call. He's now extended his 'work day,' and arguably placed himself within the scope of employment during this phone call. If the employee gets into an auto accident during this call, then the employer may be liable for the employee's actions. This is true even though both the phone call and the accident occurred after traditional business hours.”

Laws Still Evolving

It gets worse.

“If an employer gives an employee a 'piece of property' to use, i.e, a cell phone, then the employer has a responsibility to train the employee to use it safely,” Stern said. “Florida law states that if the employee uses that phone for any reason, even to call his wife on Saturday afternoon, whether in scope of employment or not, the employer can be held responsible for negligent training.”

Stern said there is a gray area in this scenario if the employee owns the phone and the employer only pays part of the expenses. If that's the case, it may be that the employee calling home does not open up the employer to liability.

The question of workers' compensation also invariably comes up. James N. McConnaughhay of McConnaughhay, Duffy, Coonrod, Pope, & Weaver P.A. in Tallahassee, and an expert in workers' compensation law, said that “While it [a vehicle accident while using a wireless device] could probably be considered on-the-job for workers' compensation purposes, it could create a 25 percent reduction in compensation benefits (not medical) if there is a safety rule in place by the employer prohibiting this type of conduct.”

The federal government has yet to act on the cell phone and distracted driving issue, leaving states to enact a patchwork quilt of varying laws. According to a state-by-state study by IIHS, Florida, Alabama, Georgia, Mississippi, South Carolina, and Louisiana are among the states that currently have no restrictions on cell phone usage while driving (Georgia and Louisiana ban school bus drivers from talking on cell phones. Miami has passed a hands-held ban, which seems to pose a conflict with a Florida law that prohibits localities from banning cell phone use.)

Although a proposal to keep cell phones out of the hands of teenage drivers in Florida failed in the last legislative session, such bans are becoming commonplace in other states. Seventeen states and the District of Columbia restrict both hand-held and hands-free phone use by young drivers. California, Connecticut, New Jersey, New York, Utah, and Washington DC bar all drivers from using hand-helds. While state and federal laws are being drafted and court cases thrashed out, Attorney Sterns with Kelley, Kronenberg recommends that employers, at a minimum, do the following:

-Consult with an attorney to help draft company policy.-Permit the employee to conduct business over the phone only if the employee pulls off the road or into a parking lot.-Require that all calls received while driving go to voicemail.-Provide training to address the dangers of cell phone usage while driving, and e.ducation regarding any state and local legislation-Place warnings on any employer-issued wireless devices. -Provide annual training about cell phone usage to establish a continued pattern of employee education.-Have employees sign off that they have both received and have developed an understanding of the policy.-Discipline employees who violate the policy.