A recent survey conducted by Travelers insurance found that 4 in 10 drivers conceded they use a phone while they are driving, usually because they feel compelled to be available for work at all hours and/ or they don’t want to upset their boss.
Of the 43 percent who are on their phone while behind the wheel:
- 38 percent were talking on the phone;
- 17 percent were texting
- 10 percent were emailing
Of those who admitted they were engaged in work-related communication while driving, more than half were between the ages of 18 and 44. The Washington Post reports the survey was intended to analyze the common practice of people using their personal vehicle for work. Of those who responded, three-fourths said they use their own personal vehicles for some work-related function, outside of simply traveling to and from the office. This raises an interesting legal question with regard to liability for resulting crashes because someone who is acting in the course and scope of employment at the time of a crash could be eligible for workers’ compensation benefits. Additionally, if the employee was found to be at-fault, the company could be vicariously liable to pay damages to the injured victims under a legal doctrine known as respondeat superior.
However, as our West Palm Beach car accident lawyers know, these cases won’t be as straightforward as, say, a truck driver who is clearly driving as part of an essential function of his or her job.
As the American Association for Justice pointed out in an article earlier this month, the lines can be a bit blurred when it comes to employer/ employee communications and employer liability for crashes. For instance, if an employer or boss sends a text to an employee while the worker is driving and the employee is either reading or responding and as a result of that distraction, is involved in a crash, it’s possible the company could be held liable. However, if the boss sends an email – and there is no general expectation that the correspondence will be read and responded to immediately – then there may be less of a case. But the case law on this issue is still being developed. For instance, what if an employee causes a collision while using an employer-provided smartphone, but not while conducting work-related business? A district court deciding that case ruled the company wasn’t responsible in that case because the distracting call wasn’t placed in furtherance of the company’s business.
Increasingly, companies are hoping to limit their liability by putting internal policies in writing, making it clear what the worker’s responsibilities are while driving on company business or when responding to company communication while behind the wheel. A company that does not have a clear, written policy on cell phone use by traveling employees could find itself more vulnerable to legal action.
There have been a number of cases across the country that have attempted to expand vicarious liability of companies for exactly these situations. For example in New Jersey four years ago, a court held a person who texted another while knowing the recipient was operating a vehicle could be held liable.
However, most courts have stuck to the premise that the responsibility to avoid distractions (including cell phone communication) while driving is squarely on the driver.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
The boss made me do it: 43 percent admit using smartphone because of work while driving, survey says, Dec. 1, 2017, By Fredrick Kunkle, The Washington Post
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$45 Million Verdict for Family of Med Student Killed in South Florida Truck Accident, Nov. 5, 2017, West Palm Beach Car Accident Lawyer Blog