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Probably all of us have been annoyed by the blare of cell phones ringing in practically every locale imaginable. However, most of us have also likely been thankful for cell phone access either in an emergency or for the sake of convenience. No doubt, there are negative and positive aspects of cell phone usage, and the cell phone debate rages on. The debate, however, has been taken in a new direction recently, as the issue of legal liability stemming from cell phone usage reaches the courts. NEW WAVE OF LITIGATION A recent Virginia case may mark the beginning of a new wave of cell phone liability litigation. In that case, the Cooley Godward law firm faces liability for the negligence of an associate, who struck a 15-year-old girl while driving and talking to a client on her cell phone. The associate was driving home from a client meeting when she hit what she believed to be a deer. Unfortunately, she actually struck Naeun Yoon, who was walking on the dark side of the road. Yoon later died from her resulting injuries. Yoon’s family has sued Cooley Godward under the legal theory of “respondeat superior,” alleging that the law firm should be liable for the wrongful death of Yoon because the firm did not take public safety into consideration when it encouraged and profited from its associate’s use of her cell phone. The lawsuit seeks $30 million in damages from Cooley Godward. WHAT SHOULD EMPLOYERS DO? The potential of legal liability forces employers to think long and hard about whether they should condone cell phone usage by their employees, and if so, under what circumstances. For businesses where employees spend a substantial amount of time commuting or traveling on business, there obviously are significant advantages to employees using their cell phones. For other employers, cell phone use by employees may not be necessary and may otherwise cause different types of interference. For both types of employers, an official written policy on cell phone use should be created. As to those employers who do not want their employees using cell phones for business purposes, the policy should clearly state a prohibition on such use. For employers who condone employee cell phone use, the policy should take into account particular circumstances. For example, employers should think carefully about whether they want their employees talking on their cell phones for business purposes while driving. If the answer is “no,” then the official written policy should so state in very certain terms. If the answer is “yes,” the employer may wish to mandate the use of hands-free devices; the employer also may wish to preclude cell phone usage while driving during adverse weather, traffic and visibility conditions. The official written policy should be developed with the help of experienced counsel in this area, and it should be distributed to and signed by all employees. EMERGING LAWS Further complicating matters is the fact that a number of states and municipalities have recently enacted laws that regulate the use of cell phones in automobiles. It is possible that an employee driving between two cities in two different states could be subject to a variety of laws with respect to just one business trip. An employer thus should be apprised of the laws where employees will be driving when drafting an effective cell phone policy. HEALTH ISSUES As if this were not enough, some people suggest that using a cell phone can cause brain cancer based on microwave signals. To the extent employers purchase cell phone equipment for employees, they should be careful to buy the safest possible equipment, such as ear pieces that keep the cell phone away from the immediate vicinity of the head. Moreover, a cell phone written policy should advise employees of the possible heath-related risks pertaining to cell phone usage. STAY AHEAD OF THE CURVE This is a rapidly evolving area, and employers should do their best not only to keep up with developments, but if possible, to work with counsel to stay ahead of the curve. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected].

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