Distracted driving due to mobile phone use while behind the wheel is a dangerous and prevalent problem. In 2010, nearly 20 percent of all motor vehicle accidents were attributed in some way to distracted driving. Of these crashes, over 3,000 resulted in deaths and over 400,000 resulted in serious injuries. These dangerous actions while behind the wheel don’t just bring up elements of traditional negligence for the distracted vehicle operator, they also raise serious issues with respect to respondeat superior and employer liability for the negligent acts of its agent.

It has long been established in Pennsylvania that an employer can be liable for the acts of its employees in certain situations. Generally, it has been held by the Pennsylvania courts that an employer is liable for the negligence of its employee when the employee is within the scope of his or her employment and acting in furtherance of employer interests.

No one knows as much as a busy lawyer that your cellphone is often your link to the business world. Client calls, conference calls, emails, texts, social media, etc. dominate many of our lives. With the advent of more sophisticated mobile communication technology, business no longer needs to be conducted exclusively in the office. Work communications are frequently taking place in the car, train, bus, airplane and even sidewalk. While engaging in these communications, a very strong argument can be made that an employee is within the scope of employment and acting in furtherance of the employer’s interest. As a result, in such situations, vicarious liability will likely apply to the employer for the negligent acts of its employees, thus greatly expanding lawsuit exposure to employers and their insurers.

The increased potential exposure of employers for the negligence of their employees while using mobile devices in the scope of their employment has far-reaching implications for practitioners on both sides of the proverbial "aisle." For plaintiffs attorneys in third-party negligence cases, you must address these issues early in discovery through interrogatories, request for admissions and in-depth investigation of witnesses. As early as possible, spoliation or preservation letters must be sent to the tortfeasor to maintain his or her cellphone in the condition it was at the time of the accident. In addition, subpoenas to the tortfeasor’s mobile phone provider, whether personal or through his or her employer, must be served. This is particularly necessary where injuries are extensive and insurance coverage for the tortfeasor is minimal. If there is any evidence to suggest that a tortfeasor was within the scope of his or her employment at the time of the negligent act, a separate action should be commenced against the employer expeditiously.

For employers and their counsel, do not wait until a claim has been brought against you to address the issue of distracted driving with your employees. Hold a mandatory seminar for all employees introducing a firmwide mobile-phone policy. The policy must prohibit employees from all mobile communications while driving, particularly email and texting, regardless of available hands-free devices. Each employee should be required to sign off that he or she has received the policy and fully understands it. The policy should also include a disciplinary scheme mandating that violators be sanctioned or dismissed. In the policy, there should be no ambiguity: The employer never condones mobile phone use while operating a motor vehicle. Perhaps as technology advances and if cost permits, it will be possible to monitor employee use of employer-issued mobile devices to ensure compliance with company phone policy. However, at this stage, a written policy is the best deterrent.

Implementing a policy prohibiting distracted driving for employees should not be a recommendation, it should be a necessity. Such a policy may not be able to insulate employers from all liability of its employees’ negligence while driving distracted, but it should have immediate effects that could potentially save significant costs in the future. First, in the absence of such a policy, an argument could be made by a skilled workers’ compensation attorney that an employee injured in a motor vehicle accident caused by his or her own negligence could be entitled to workers’ compensation if the accident occurred while the employee was on a work call or composing a work email or text behind the wheel. Similarly, because distracted driving is such a well-known and prevalent problem, it would be difficult for an employer to argue that it was unaware of its existence. Such knowledge could give rise to punitive damages against the employer in the absence of a company-wide policy prohibiting cellphone use while driving.

In the Texas case of Chatman-Wilson v. Coca-Cola Enterprises, No. 10-6150-2 (Tx. 2010), the plaintiff alleged that she was severely injured in a car wreck caused by a Coca-Cola employee who was talking on a cellphone at the time of the accident. The plaintiff proceeded against defendant Coca-Cola on a respondeat superior theory claiming that the negligent driver was acting on behalf of Coca-Cola at the time of the accident. The jury returned a verdict for $24 million, including $14 million in punitive damages. It was alleged that defendant Coca-Cola failed to properly enforce its cellphone policy in the case, thus giving rise to punitive damages.

The courts and General Assembly in the commonwealth may weigh in on vicarious liability for employers in employee distracted-driving accidents at some point in the future. Regardless of whether they uphold the potential exposure to employers or limit it, the simple fact remains that discouraging distracted driving in any way, shape or form, regardless of the motive, will benefit us all. •

Michael Schafle is a member of the unsafe drug and medical device team at Anapol Schwartz. He also maintains an active practice representing individuals in catastrophic accident cases.