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Friday, June 22, 2012

Courts start considering injuries caused while texting

Can businesses be exposed to liability just because their employees are texting while driving, even during lunch or on their way home at night?  In view of recent trends reflected in various parts of the United States, the answer is arguably yes. 

A couple of years ago, a Virginia court upheld an injured parties’ right to sue a law firm when its employee was distracted while driving home, because she was talking on her cell phone and badly injured a pedestrian.   The court ruled that the driver was negligent while arguably acting ‘in the scope’ of her employment, because she was discussing company business while on the call.  More recently, a New York court indicated that it would permit a lawsuit to go forward against a driver’s girlfriend who texted and allegedly distracted him, resulting in his car hitting people on a nearby motorcycle and causing serious injury.  This scenario is particularly troubling, because she was not even in the car and may not have known that he was driving at the moment that she sent him the text.  He read her text and then swerved into the other lane, resulting in the accident.

Companies should implement internal policies making it clear that employees should not use their cell phone, for any business purpose, while driving.  That will not only head off possible accidents caused by distracted driving, but could help insulate the company by establishing that someone is not properly acting within the scope of their job if they text while driving.  While no steps are totally foolproof, establishing clear HR policies at the workplace can represent an important and helpful step to help employers avoid liability.