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My pet peeve is seeing a driver attempting a left-hand
turn in congested traffic … and talking on a cell
phone!
On January 23, 2005, Joyce Pellino Crane, from the
Boston Globe, wrote about Cooley Godward and a law suit
settlement. The subject matter? Whether an employer
is liable for damages resulting from an accident caused
by negligent use of a cell phone? This is the first
cell phone case which has come to the attention of this
writer. And, I say that it’s about time!
Whether or not the hands-free operation of a cell
phone prevents accidents is arguable. The National Highway
Traffic Safety Administration estimates that 3 percent
of cell phone owners are talking while driving at any
given time. Of 6 million annually reported car crashes,
half are related to driving while distracted, according
to the American Automobile Association (AAA). The AAA
suggests that it's not the act of holding the device,
but rather the discussion that causes accidents.
Most of us focus on our discussion. And when we’re
driving and talking, the talking usually commands our
attention. Even if you're using a headset, you can still
get into an accident. Why? Because, frequently, the
conversation prevents you from seeing what’s right
in front of you! Obviously, your mind is elsewhere.
A small but growing number of companies are publishing
guidelines for cell phone use inside the office and
the car, as some high-profile liability cases catch
the eye of corporate America.
"It's a hot liability topic," says Kathryn
Lusby-Treber, executive director of the Network of Employers
for Traffic Safety in Vienna, Virginia. "The company
is certainly at risk. If they have an employee who's
driving for business and they're in a crash, the employer
can be held responsible for the crash."
Will these guidelines protect the company? Not necessarily.
In October 2004, Cooley Godward of San Francisco settled
a $30 million lawsuit in the death of 15- year-old Naeun
Yoon, who was struck and killed in 2000 on a busy highway
outside Fairfax, Virginia, by one of its employees -
a lawyer accused of making a business call on her cell
phone while driving. After serving a year in jail and
surrendering her law license, Jane Wagner was ordered
to pay $2 million in damages to Yoon's family by a circuit
court jury in Loudoun County, Virginia.
While the firm's insurance company paid $92,500, the
firm was not held liable. However, the case of Yoon
v. Cooley Godward has broader implications. This decision
suggests that employers could be vicariously liable
for the cell phone-induced distracted driving of their
employees. Having a published policy against such use
may not help; while one factor to consider, it’s
insufficient in most cases. There is precedent for this
thinking. Just take a look at sex harassment cases where
the firm has a written policy against such actions,
but is still held liable for lack of appropriate enforcement
activity.
Perhaps the use of cell phones, Blackberries and other
mobile technology should be reexamined to take advantage
of their benefits while not exposing our law firms to
damages and concomitant loss of reputation.
Edward Poll, J.D., M.B.A., CMC, is
a coach to lawyers and certified management consultant
who shows attorneys and law firms how to be more profitable.
Ed's latest book is Collecting Your Fee: Getting
Paid From Intake to Invoice (ABA 2003); he is also
the author of Attorney & Law Firm Guide to The
Business of Law, 2d ed. (ABA 2002) and Secrets
of the Business of Law: Successful Practices for Increasing
Your Profits. To make suggestions or comments about
this article, call (800) 837-5880 or send an e-mail
to edpoll@lawbiz.com.
You can also order a free e-zine or visit Ed on the
web at www.lawbiz.com.
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