Mr. Croley

Hospitality Law

Are You Off The Hook? - Distracted Driving Lawsuits

By Daniel Croley, Labor and Employment & Litigation, Futterman & Dupree

In a pending lawsuit in Virginia, a Palo Alto based law firm was sued for $30 million when an attorney, making business phone calls while driving, veered off the road killing a child. The child was not found until almost an hour later because she was thrown off the road by the impact. In defense of the claim, the employee claimed she thought she had hit a deer, and therefore did not stop her vehicle. At the time of the accident, the employee was making business calls while returning home from work. The family asserts that the employee is liable, and that the law firm is also liable as the attorney was billing the time spent on her cellular phone to a client at the time of the accident.

On June 2, 2003, a Los Angles jury awarded over $7 million dollars in damages against a driver who was using her cell phone when her car struck a patrol car and injured a Los Angles police officer. Jewett v. Johnson (MC013478) (Los Angles Superior Court, June 2, 2003).

Several other similar lawsuits have been brought. Some have produced multi-million dollar settlement and jury awards, including cases in Hawaii and Florida.

New Legislation

There has been and will continue to be a wrath of legislation to address the dangers of cellular phone use while driving. In 2001 and 2002, approximately 130 proposed laws regarding cellular phones and driving were introduced (a six hundred percent increase over 2000). Thus far, only one state (New York), as well as a few localities, has actually prohibited the use of hand held mobile phones while driving.

In New York, the penalty for use of a hand-held device is a fine of up to $100, with fines for repeated violations of up to $500.

In California, which has over 10 million cellular phone users, the Assembly passed in May, 2003 a ban, starting in 2005, on the use of hand-held mobile phones while driving. The vote was 41- 26, a narrow victory in the 80-member house. The bill, sponsored by Assemblyman Joe Simitian, D-Palo Alto, now moves to the Senate and, if passed, would move onto Governor Davis. This is a significant change over 2001 and 2002 when similar legislation died before reaching the Assembly floor.

In Colorado, legislation has also been introduced that would ban the use of cellular phones other than hands-free devices, effective 2005.

Similar laws are under consideration in many other states.

These laws will further stimulate lawsuits when accidents occur because plaintiff's burden will be lessened by a statute establishing the standard of care in asserting that the employee and employer were negligent. If the case goes to a jury, the judge will likely instruct the jury on negligence per se as follows:

If you find that a party to this action violated the [Mobile Phone Statute] just read to you and that any such violation was a cause of injury to another, you will find that such violation was negligence unless such party proves by a preponderance of the evidence that he or she did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. In order to sustain such burden of proof, the defendants must prove by a preponderance of the evidence that they were faced with circumstances which prevented compliance or justified noncompliance with the regulations.

Employer Responses

Employers may desire to implement policies specifically addressing the dangers of cellular phone use while driving to fit their particular situation. Some approaches are prohibiting all cellular phone use while driving, or at least all use of hand-held devices. Others include restricting note taking, looking up numbers or dialing unless the car is stopped and it is otherwise safe. For those employers that use " driving agreements" to regulate on-duty driving, those agreements should be reviewed as well.

Employee should also consider reviewing their insurance coverage and adjust policy limits as needed to cover the staggering potential liability for distracting driving. Of course, employer should document their insurer's promise of coverage. Ideally, this would include written confirmation to the insurer of coverage.

With these steps, an employer can begin to lessen potential liability based on distracted driving. Of course, every policy must be reinforced by education and periodic updates. For instance, employers should consider broadcasting any such policy annually in an email from a corporate officer.

Daniel Croley specializes in Labor and Employment & Litigation at Futterman & Dupree. He advises employers on employment law with emphasis on difficult terminations, drafting and implementing company policies, non-compete agreements, protecting proprietary information, and non-solicitation issues.He is a graduate of University of Minnesota Law School, a Member of State Bar of California, and is admitted in U.S. Supreme Court; 9th Circuit and the District of Columbia U.S. Courts of Appeal; and Northern and Eastern U.S. District Courts of California, and Eastern District of Washington. Mr. Croley can be contacted at 650-867-0197 or dcroley@dfdlaw.com Extended Bio...

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