Business Department

Employers may face liability for accidents caused by employees using cellular phones or other business-related technology

As technology improves and expands, employees are connected to the office in more ways than ever before. Whether by cellular phone, PDA, or laptop – liability for negligent acts committed by employees while linked to the office can flow to the employer.

One Virginia law firm discovered this the hard way. An attorney was in a traffic accident while talking on the phone to a client. A lawsuit was filed against the attorney's firm for liability for the accident. In this case, the purpose of the call was an issue. There was evidence that the attorney had a personal relationship with the client and that the call may have been social. The employer law firm fought hard to establish that the lawyer was not serving the firm's business while on the phone. Nevertheless, the parties and the Court recognized that, regardless of the purpose of the lawyer's car trip, the employer could have been found responsible for the injuries incurred in the accident based on the purpose of the phone call.

Significance
The Virginia ruling adds to the law that has long recognized that an employer can be held responsible for the negligence of its employee when the employee's negligent act occurs in the course and scope of his or her employment. This respondeat superior liability has provided an avenue for injured people to recover money from the employer for their injuries.

The Virginia case is a natural expansion of the respondeat superior inquiry regarding whether the negligent person was acting within the course and scope of his employment at the time of the accident. With increasing use of cellular phones, an employee may arguably be carrying out the business of his or her employer while, for instance, checking office phone messages on the way home from the theater on Friday night. If one is in a car accident while talking on the phone to an employer, it may not matter that he or she was traveling from home to the grocery store. If the negligent driver is on the phone at the moment of impact, the purpose of that call may establish employer liability.

It should be noted that liability does not require that the act of being on the cellular phone cause the accident – nor does it matter whether or not driving while on the phone is illegal. The phone call merely establishes the role of the driver at the moment of the accident as being for the benefit of his or her employer.

Employers Must Prepare for the Inevitable
The case in Virginia may be the first, but it will certainly not be the last time an injured person tries to reach an employer for an act committed by an employee while connected to the office.

Closer to home, Pennsylvania police accident reports now have a section for the investigating officer to note whether cellular phones were present in the vehicles and whether cell phones were in use at the time of the accident. The next logical inquiry will be to whom the driver was talking, and why.

Employers must be aware of this potential liability for injuries caused by their employees and prepare for the inevitable. They should discuss with their insurance agent whether the company has enough insurance and the right kind of insurance for lawsuits of this nature. Employers should discuss the options for general liability insurance and umbrella coverage for liability arising out of accidents by employees.

MacElree Harvey
17 West Miner Street
Post Office Box 660
West Chester, PA 19381–0660
p | 610.436.0100
f | 610.430.7885
f | 610.429.4486
e | info@macelree.com