As we have discussed in prior issues of A Potpourri, an employer can be held vicariously liable for the acts of its employee under the doctrine of respondeat superior when such acts are committed in the course of employment and in furtherance of the business of the employer. Some recent cases provide examples of how persons injured in automobile accidents have used the doctrine of respondeat superior to impose liability upon employers whose employees have been involved in accidents while using cell phones:
· A broker employed by Smith Barney was involved in an accident while he was using a ell phone to conduct business. Smith Barney, which was named as a defendant in the suit filed by the injured party, settled the suit for $500,000.
· A jury awarded $21 million to a party injured during an automobile accident involving a salesman of a lumber company who was talking on his cell phone while driving. The employer subsequently settled the suit for $16.2 million.
In view of the financial risk for employers caused by such litigation, employers should consider adopting a cell phone policy which may provide employers with a defense to such claims, even if the employees do not comply with the policy. In developing a cell phone policy, an employer should consider: (1) whether to impose a blanket ban on the use of cell phones when employees are driving; (2) permitting hands-free use of cell phones while driving; (3) developing a policy acknowledgment form that employees must sign; (4) implementing procedures to ensure the policy is consistently enforced; and (5) requiring employees to sign agreements that they will indemnify their employers if they violate the cell phone policy.
If you need assistance in preparing a cell phone policy, please contact a member of the firm.