James F. Mahoney, Attorney

March 2012

Employer Liability for "Off Duty" Crashes Due to Cell Phone Use

Employers may be held accountable for the negligent acts of employees committed in the course of employment

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Although only a few high-profile cases have been publicized, employers should be concerned that they might be held liable for accidents caused by their employees who are driving their own vehicles and conducting work-related conversations on cell phones.

In one case, International Paper Co. paid a $5.2 million settlement to a woman who was rear-ended by one of its employees. The employee was driving a company car and talking on a company cell phone at the time of the accident. The settlement was reached even though the employee had violated her company’s policy of requiring the use of hands-free headsets while driving.

Under the doctrine of vicarious liability, employers may be held accountable for the negligent acts of employees committed in the course of employment. It will not matter if it’s a company car or company cell phone:

  • Employers may also be found negligent if they fail to put in place a policy for the safe use of cell phones. You need a cell phone policy in your employee handbook. Practically speaking, you need a cell phone and texting policy that requires employees to pull off the road before conducting business by cell phone.

  • As to texting, a study by the Highway Loss Data Institute found that texting bans may not reduce crash rates. It’s been reported recently that 18 percent of drivers in the U.S. admitted texting while driving in the last 30 days. This includes 31 percent of drivers age 16 to 24, 41 percent of drivers age 25 to 39 and 5 percent of drivers 55 and older.