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Most of us have probably seen and maybe are also guilty of the daring and increasingly dangerous practice of “driving while dialing.” This means cruising down the highway or zipping around city streets while chatting on a cell phone. And now, with the increasing popularity of PDAs (personal digital assistants), such as PalmTM Pilots and pocket PCs, some people are beginning to boldly master tapping the screen of the PDA (as it sits in his or her lap) with one hand, and clutching the wheel with the other. A formula for disaster? Probably. But what many are just beginning to realize is that the preoccupied techie, who “accidentally” rear-ends the taxi stopped in front of him, may not be the only party responsible for the crash. If the distracted driver was conducting work-related activities when the accident occurred, such as checking his work e-mail, then the employer, too, may be slapped with a lawsuit, unless there is a clear intention by the employer not to condone such activity, such as in an employee handbook. The list of defendants may not even stop there — the wireless service provider and the manufacturer of the PDA could also be named parties to the suit. And with figures as high as $30 million for claimed damages floating around out there, employers, manufacturers and service providers need to be very careful. The law as it pertains to cell phones and other wireless devices is still in its infancy. Many states are in the process of enacting legislation to deal with the issues related to cell phone use while driving. Some local governments across the nation have already enacted such laws, and the list is growing. There are no reported cases deciding liability issues of cell phone network or device providers. But two cases in particular, one of which settled and the other of which is still in progress, may suggest that the nightmare for the wireless industry is just beginning. The first case was filed against Solomon Smith Barney by the estate of a motorcyclist who was struck and killed by an employee of the investment banking firm while the employee was using his cell phone. According to published reports, the case settled for $500,000. The real twist of the case is that the accident occurred on a Saturday night and not during work time. Yet, since the employee was speaking with a client of the employer at the time, the employer was alleged to be partly to blame for the crash. Recently, a similar case emerged against Cooley Godward, a Palo Alto, Calif.-based law firm There is a claim of $30 million for the hit-and-run death of a teen-ager by one of the firm’s associates who was using her cell phone to make business calls. This case has not yet been decided. Although both of these cases provide some insight into the popular attitude toward cell phones and other wireless devices, legally they provide no new guidance. They are based on the well-established principle that an employer is generally held accountable for the negligence of his employee committed in the course and scope of the employment relationship. Whether these suits would hold up against a manufacturer or service provider, where the party at fault is not an employee of the entity being sued but merely a user of the entity’s wireless device or wireless services, is still an open issue. Yet signs may be pointing in favor of injured plaintiffs and against corporate defendants. Numerous news sources suggest that the sentiment toward cell phone (or other wireless device) use while driving is beginning to stiffen. On July 18, federal officials at the National Highway Traffic Safety Administration announced they will begin to advise consumers not to use cell phones while driving. They have based their position on studies linking cell phone use while driving to an increased risk of accidents. The NHTSA has indicated that this advice to consumers, as well as the studies underlying such advice, could now serve as a basis of liability in lawsuits against the cell phone industry. The thrust of the NHTSA’s stance is to communicate to the cell phone industry, including service providers, that the industry is responsible for understanding the safety implications of cell phones and for taking such action as to minimize the risks while informing consumers of any remaining dangers associated with their products. So what can employers and the wireless industry do to protect themselves against the threat of multimillion-dollar suits and settlements? Although the law in this area is relatively new, many of the principles and legal theories surrounding claims by injured parties are not. Employers and other entities at risk may be able to protect themselves through the use of clear and conspicuous warnings within an employee handbook, safety policy or the like — an attempt to pass the buck. Employers, who appear more at risk legally than manufacturers and service providers, have the challenge of ensuring that their employees refrain from fidgeting with a wireless device while driving and especially while on the clock. The danger of an employer being held vicariously liable as a “deep pocket” and being held responsible for paying for the injury caused by its employee while on the job touches almost all professions: medicine, law, financial services, construction, information technology and many others. Individuals in these professions routinely utilize their pager, cell phone or PDA for work-related reasons, oftentimes while driving. Does the hospital, law firm, bank, contractor or IT firm have a policy in place as to how, when and where these devices can be used while on the clock? In most cases, the answer is no. In fact, many of these employers expect their employees to check in while on the road. That is not the kind of evidence one would want put before a jury. Employee handbooks need to include a safety policy for the use of wireless devices. Those employers who do have a safety policy in their handbooks concerning cell phone use need to broaden the reach of this policy to include all wireless devices. Employers may also wish to consider having their employees sign acknowledgments attesting to the fact that they have read, understand and will abide by the company’s policy. Some employers, like Merck and Verizon, have gone so far as to provide hands-free sets to their employees and distribute informative literature as part of their safety programs. Of course, the biggest deep pocket of them all, insurance companies, are an important player in this new game. Imagine turning to your liability insurance carrier for help only to learn that your policy excludes coverage for injury caused by the failure to provide a safety or similar policy in an employee handbook, or more specifically, for injury caused by the use of hand-held devices by an employee while operating an automobile, truck, forklift or other vehicle. This scenario is not limited solely to employers; the same exclusion could apply to a manufacturer’s failure to furnish its customers with a policy as to the use of its wireless product while they are driving. Employers, manufacturers and service providers should consult with their attorneys and their insurance companies to review the potential pitfalls that may lie ahead. As with any novel area in the law, until the legislatures take definitive action, the courts are faced with the daunting (or exciting, depending on your view) task of creating and shaping the law. Some courts may choose to extend liability for injury attributable to wireless devices to the manufacturer of the device, where other courts may not be so liberal. Either way, until a body of law develops, a relatively safe bet for an employer and the wireless industry is to take some of the steps described above to mitigate the likelihood of accountability. As always, before any such steps are taken, one should consult an attorney knowledgeable in this subject area to review the available options. Joseph F. Falcone III of Fox Rothschild concentrates his practice in general corporate law. He is also involved with the pro bono efforts of the Philadelphia Volunteers for the Indigent Program. Falcone can be reached at 215-299-2042 or by e-mail at [email protected].

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