When driving and talking on a cell phone don’t mix, what is your liability?

We all do business through mobile phones — how did we ever live without them? But using cell phones inappropriately can present a big problem for employers.

Many companies have policies on using cell phones while driving, including requirements to use the car’s hands-free feature and abide by applicable laws. But is the employer liable when an employee who is adhering to the employer’s policy has a car accident that causes injury to a third party?

The answer isn’t simple. The legal principle “respondeat superior” states that an employer is responsible for wrongful acts of employees when committed within the scope of their employment. But determining exactly what is “within the scope of employment” depends on the facts of the case.

In a recent case, Ayon v. Esquire Deposition Solutions, the California Court of Appeals held that the employer was not liable because no evidence indicated that the employee was acting within the scope of her employment at the time of the accident. In the case, Esquire employee Brittini Zuppardo struck the plaintiff with her car while speaking with another Esquire employee after business hours. She was using the car’s hands-free Bluetooth system. The plaintiff filed suit against Esquire and Zuppardo for personal injuries.

Esquire filed a motion for summary judgment, stating that the plaintiff could not establish that the company was liable for damages. The trial court agreed with the company and the plaintiff appealed.

The appeals court upheld the decision based on these facts:

  • The phone call took place after hours.
  • Zuppardo was not on a work errand but was on her way home from a social engagement.
  • The Esquire employee to whom Zuppardo was talking was a personal friend and the conversation was not about work matters.

Supporting those facts was the testimony of both employees who denied discussing work, plus undisputed evidence that Zuppardo rarely made after hours work calls and doing so was not a regular part of her work duties.

Whether or not the employee’s use of the cell phone contributed to the accident was not clear, but the employer avoided liability in this case. Other cases have turned out differently, however, and employers must be sure that they have cell phone policies in place to protect the safety of employees as well as to avoid litigation.

Check state and local laws to make sure your policies comply, especially if you expect employee use of cell phones for work-related calls. You may wish to ban cell phones while driving or require the use of hands-free devices. Keep in mind, however, that even a hands-free conversation distracts the driver and can be unsafe.

If you don’t yet have a cell phone policy — or wish to review the one you have — consult your employment law attorney to ensure that it protects you and your employees. We’d love to help.


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