What’s agency’s liability for staff cell phone use?

By Elizabeth E. Hogue, Esq.
Burtonsville, MD

Use of cellular telephones by home care staff members to conduct business on behalf of agencies is essential.

It also is important for staff members to use cell phones in order to address concerns about the safety of staff members.

Agency managers may, however, have wondered about potential liabilities associated with such use. Two crucial risk management issues come immediately to mind:

  • Are agency employers liable for injuries caused by their employees in auto accidents while employees were using cell phones to conduct agency business?
  • Are employers liable for failing to establish and implement policies and procedures governing the safe use of cell phones while driving?

Court cases addressing the issues

These issues were recently addressed in several court decisions.

A lawsuit in Florida involved a salesman who, while talking on his cell phone, collided with another vehicle. One of the occupants of the vehicle struck by the salesman was seriously injured. The injured passenger sued the salesman’s employer, Dyke Industries Inc.

She claimed that Dyke Industries was liable for her injuries because the salesman was acting within the scope of his employment while talking on his cell phone as he was driving.

Records of cell phone calls made by the salesman confirmed that he was conducting business on behalf of his employer at the time of the accident. The jury in this case concluded that the salesman and Dyke Industries were liable for $21 million in damages.

A similar case was brought in Virginia against a law firm, Cooley Godward. An associate of the firm was talking on her cell phone while driving, and struck and killed a 15-year-old girl.

The parents of the deceased young woman sued the law firm, claiming that it was liable for the girl’s death because its associate was conducting firm business on her cell phone when the accident occurred.

Specifically, the parents claimed that Cooley Godward was vicariously liable for the associate’s negligent driving because she was acting within the scope of her employment when she make cell phone calls to clients and because Cooley Godward encouraged employees to use cell phones to conduct business on behalf of the firm.

Determining extent of employers’ liability

The parents also claimed that the firm was directly liable for the death of their daughter because the law firm did not develop and implement a policy and procedure governing the safe use of cell phones while driving.

The court decided that the firm may be vicariously liable for the death of the girl as a result of their employee’s negligence.

But the court rejected the parents’ argument that the firm was directly responsible because it failed to develop an appropriate policy and procedure. The court said that it was up to the state legislature to impose such an obligation on employers.

Establishing policies for cell phone use

In view of these cases, agency managers may wish to do the following:

  • Agencies should establish and implement policies and procedures governing use of cell phones.
  • Such policies and procedures should include information about the dangers of using cell phones while driving.
  • Internal policies and procedures also should spell out any limitations on use of cell phones that employers may wish to impose.
  • Indicate that employees who violate policies and procedures governing the use of cell phones will be disciplined consistent with the agencies’ policy on progressive discipline.
  • Discipline employees who violate the policy and procedure and document that they have done so.

When managers take these actions, they may be able to argue that the agency is not directly liable because it had a policy that employees violated when accidents occurred.

Consequently, employees were acting outside the scope of their employment thereby relieving agencies of liability.

The benefits of use of cell phones by home care staff members certainly seem to outweigh any risks, at least at this point.

Nonetheless, agencies are well advised to take appropriate steps to limit liability associated with their use.

[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail: ehogue5@comcast.net.]