EM PLOY EES WHO MULT ITA SK while driving
on company time pose a big risk to their employers.
Employers can be held liable for an accident caused
by an employee’s distracted driving, if the employee
is acting withi n the course and scope of his employ-
ment. Now there is a new risk on the road : employ-
ees who text while dr iving. In the past 10 years, the
phenomenon of texting has grown exponentially. In
2002, the average monthly volume of text messages
was 1 mill ion and by 2008 t hat number had grown
to 110 million. 2 Texting behind the wheel accou nt-
ed for more than 16,000 death s between 2002 and
20 07. 3
Contrary to popular belief, texting while driv ing
isn’t just for teenagers. A recent stud y found that
adults a re just as likely as te enagers to tex t while
driving.4 Nearly hal f of all a dults who tex t admit
th at th ey h av e s en t or re ad a t ex t m es sa ge wh i le d r iv -
ing.5 Those texting adults could be your employ-
ees. In the face of this text ing mania, Geor gia has
recently jo ined the grow ing number of s tates that
are combating texting-related automobile accidents
by e na c ti ng la ws th at pr oh ib it te xt i ng wh il e d r iv i ng .6
To p rot e ct th em se lve s , t he ir em plo ye es an d t he pu b-
lic, businesses should i mplement policies to ensure
that employees aren’t being driven to distraction by
textin g.
The f act that employers can be held li able for
employees’ negligence is not hing new. An employ-
er can be held liable for an empl oyee’s negligence
under the doct rine of respondeat superior, m ore
commonly know n as vicarious liabi lity or imputed
negligence. In Georgia, for example, employers can
be held liable for their e mployees’ negl igent acts
under O.C.G.A. § 51-2-2 which states t hat “[e]very
person shall be liable for torts co mmitted by his …
servant by his com mand or in the prosecution a nd
within the sc ope of his business, whether the sa me
are committed by negligence or voluntarily.” As the
language of the law suggests, an employer will only
be held liable for an employee’s negligence when the
employee is acting with in the scope of his employ-
ment.7
Although vicariou s liability has exposed employ-
ers to liability i n the past, the existence of an ant i-
texti ng law can heighte n the risk for e mployers
by cre ating a presumpt ion in civil cases t hat the
employee’s texting was negligent as a matter of law.8
If an em pl oye e t ex ts wh i le dr iv i ng on c o mp an y bu s i-
ness, the employer could fa ce liability for the dam -
age caused by any resulting accident. Employers that
provide employees with company cars and company
cell phones also have to worry about being held liable
for ne g li ge nt ent r us t me nt . I f a n e mp lo ye r e nt ru st s a n
employee with a vehicle, knowing that the employee
is incompetent for some reason, including a history
of recklessness, the employer may be held liable for
a re s ul ti ng ac c id ent . 9 No matter what the basis of the
claim, texti ng behind the wheel is almost cert ainly
negligent, and employers fa ce the risk of vicar ious
liability when their employees text while driving.
With the growth of cell phones in America n soci-
ety, employers have faced l iability for cell phone -
related car accidents cause d by their employee s.
In 20 07, Internation al Paper Co. s ettled a lawsu it
in F ulton Co unty, Ga. , for mor e than $5 mi llion
afte r a n emp loyee drivi ng a co mpany car, and
allegedly u sing an employer-provided cell phone,
rear-ended an At lanta woman .10 Th e woman
ultimat ely had to have he r arm amput ated due to
medical complications cause d by the accident .11
Similar accidents have led to trouble for com-
panies i n other states as well. In Bustos v. Dyke
Industries, Inc.,12 a F lorida jury awarded Busto s
$21 mill ion for the severe injuries Bu stos received
after being hit by a n employee of Dyke Industries,
who was talking on his cell phone whi le driving. In
Ellende r v. Neff Rental , Inc., an employee of N eff
Ren ta l c aus ed an ac ci den t wh i le t al ki ng on hi s co m-
pany cell phone with a nother employee. 13 Ne ff
Rental was found to be vic ariously liabl e because
the employee was acting in the course and scope of
his employment, ta lking on a company-iss ued cell
phone, and the c ompany had never prohibited the
use of cell phones wh ile driving.14 W hile all these
cases involved employees who were talking on a cell
phone while driving, texting may add an additional
level of risk. A recent study found that drivers using
cell phones exhibited greater impairment than driv-
ers who were legally intoxic ated.15 In fact, accord-
ing to a study by the Virg inia Tech Transportation
Institu te, drivers texting beh ind the whe el are 23
times more li kely to be involved in a crash or ne ar
crash than non-di stracted drivers.16
In re sponse t o the g rowing d angers of textin g
beh ind t he whe el, Ge orgi a pas sed t he “C aleb S oro-
han Act for Saving Lives by Preventing Texting While
Driving.”17 The requirements of the law differ slightly
depending on the age of the driver. Drivers aged 18
and older are prohibited from texting while driv-
ers under t he age of 18 are proh ibited from either
talking or texting on their cell phones while driv-
M a n a g e r i s k w i t h c e l l p h o n e p o l i c y
simple steps can help protect businesses, their employees
an d t he pu bli c f ro m d is tra ct ed dr ivi ng
daily report WEDNESDAY, NOVEMBER 17, 2009
Nearly half of all adults who text
admit they have sent or read a
text message while driving.Those
te xt i ng adu l ts co ul d b e y ou r
employees.
INPRACTICE
DAILY REPORT
allegra J. lawrence-
Har dy1 is a partner in Sutherland’s
litigation practice group and co-leader of the
business and commercial litigation team. She
has extensive experience handling complex
multi-party, class action, multi-jurisdictional
commercial and labor and employment
matters.
Jamala S. mcFadden is counsel
in Sutherland’s litigation practice group and
focuses her practice on complex business
litigation and employment litigation. She
represents companies in multi-jurisdictional
and class action matters.
