While driving to a restaurant on a Saturday night, the driver dropped his cellular phone, bent down to retrieve it, ran a red light, and killed a motorcycle rider. However, the main target of the ensuing wrongful death action was the driver’s employer, not the driver. Although the accident occurred outside of normal business hours, the plaintiffs alleged that the brokerage firm that employed the driver encouraged its employees to do business by phone in their cars any time of day, and that the driver was trying to call a client when his vehicle collided with the motorcyclist. The case was settled out of court and the plaintiffs received a substantial sum.

The fact that an employee is provided with a cellular phone or pager and is “on-call” at the time of an automobile accident may put the employee “on the job,” even where the employee is not using a cellular phone when causing the accident. In one such case, a salesman caused an accident while driving home in the evening. The court found that the employee was acting in the scope of his employment primarily because he was required to carry a beeper and to use it to respond to customers’ needs until 7:30 p.m.

For workers’ compensation purposes, another court has held that a state employee was acting in the course of his employment when he was in an accident while driving home from work, despite a general rule that while commuting to and from work an employee is not acting in the course of employment. An exception to that rule was found because the employee was on call 24 hours a day and his vehicle was equipped with a cellular phone and a short-wave radio so that he could be contacted while in transit.

On-call status with a cellular phone will not necessarily mean that an individual is acting in furtherance of employment, but it will take significant countervailing facts for a court to avoid that conclusion. For example, a police officer was ruled to be acting outside his employment although he caused an accident while driving a police vehicle to respond to a page received by cellular phone. The court cited the overriding personal nature of the officer’s actions based on several facts: (1) he was driving the vehicle back from a golf tournament that he had attended on his own time; (2) the accident was in a neighboring town where he had no authority as a police officer; and (3) he was intoxicated and unfit for duty.

These cases are especially significant for employers who expect their employees to be working the phones, or to be prepared to do so, virtually around the clock, and for whom driving time is regarded as just another good opportunity to conduct business. The cost of squeezing out this extra productivity may well be greater exposure to tort liability when the employee’s concentration on business interferes with safe driving. Possible solutions include simply not reimbursing employees for cellular phone use and writing clear policies that will encourage employees to “drive now, talk later.” Competent legal advice should be sought before such policies are implemented

Employers May Be Liable for Employee Cell Phone Use (Reprint)