“Distracted driving,” meaning driving while also using a cell phone or other mobile device to talk or send text messages, has gained substantial national attention as a threat to public safety. All fifty states and many cities have enacted laws restricting the use of mobile devices while driving. Small business owners who drive as part of the operation of their business, or who have employees who do so, need to be aware of these laws. They must also be aware of their business’ potential liability if an owner or employee gets into an automobile accident. Some means may be available to businesses to protect them from liability for distracted driving accidents.
The law may hold an employer liable for negligent or wrongful acts of an employee, if the act or acts occurred in the normal course of the employee’s job duties. This is known as the doctrine of respondeat superior, which translates as “let the master answer.” In determining whether a particular act was undertaken as part of an employee’s ordinary job duties, courts have taken a very broad view. The key factors for courts appear to be whether the activity is reasonably connected to an employee’s job duties, and whether an outside observer might reasonably conclude that an activity is job-related. In practice, this has resulted in employer liability for essentially private acts of employees using company property.
An article in Bloomberg BNA presents several case studies that demonstrate the requirements to show a connection to job duties or the appearance of a connection. Regarding appearance, two cases involved employees driving company cars, actually a police car in one case, while using cell phones. Neither employees was on the job at the time, and both were involved in fatal car accidents. Because of the appearance of work involvement, namely the use of company-owned or official vehicles, courts held the employers liable in each case. In another case, an employee’s actions were deemed to be sufficiently related to the employee’s job duties, namely making cold calls from a private cell phone. The employee argued that the employer should be liable for the distraction-related car accident because of its own encouragement of cell phone use, and the court agreed.
Liability under respondeat superior may be very difficult for an employer to overcome, and this can constitute a significant risk and expense for a small business. One possible way to prevent liability, according to the National Safety Council (NSC), requires knowledge of local laws and regulations regarding distracted driving, which can help a business create cell phone use policies for its employees. The mere fact that an employee acted in violation of a traffic law may not, by itself, release an employer from liability. The NSC therefore recommends that businesses enact internal cell phone use policies that are stricter than local laws. An employee who is driving while distracted, in violation of both local law and company policy, may not be acting within the scope of the employee’s job duties.
The New York business attorneys at Samuel C. Berger, PC offer fixed-fee packages of legal services to businesses and entrepreneurs who want to do business in New York and northern New Jersey. To speak to a member of our skilled legal team, contact us today online or at (212) 380-8117.
Employer Liability and the Case for Comprehensive Cell Phone Policies (PDF), National Safety Council, 2012 (source)
More Blog Posts:
Social Media and the NLRB: How New York and New Jersey Businesses Can Avoid Accidentally Breaking Federal Labor Laws, New York & New Jersey Business Lawyer Blog, June 14, 2012
Marketing, Technology, and Truthfulness for the New York and New Jersey Small Business, New York & New Jersey Business Lawyer Blog, April 12, 2012
U.S. Supreme Court Report: High Court Reviews Systems for Payment of Disability Benefits to Employees, New York & New Jersey Business Lawyer Blog, February 8, 2012
Photo credit: Image vie ifaketext.com.