Company owners need to have a zero-tolerance policy supported by ongoing education and enforcement.

No one would be surprised to learn that a driver who is involved in an accident while reading a text on his cell phone could be held liable for negligence. But could the person who sent the text be liable as well? That question arose in a New Jersey Court a couple of months ago.

 David and Linda Kubert each lost a leg when the motorcycle on which they were riding was hit by a pickup truck driven by Kyle Best. At the time of the accident, 19-year-old Best was texting his 17-year-old girlfriend, Shannon Colonna. With his head down and his elbows steering his truck, Best veered across the center line and hit the motorcycle head-on. The attorney for Mr. and Mrs. Kubert sued not only Best but also his girlfriend, alleging that she shared liability since she knowingly texted her boyfriend while he was driving.

Judge David Rand dismissed the suit against the girlfriend, holding that the duty to drive carefully is the sole responsibility of the driver. However, many lawyers have written about this case and argue that the judge’s decision is incorrect. Some theorize that a person who knowingly texts a driver is, in effect, intentionally distracting that driver and therefore should have personal liability. There is enough difference of opinion regarding this case to assure that we will see additional litigation in the future.

What about employer liability? Unfortunately, as many employers already know, an employer can be held liable for the negligence of its employees under the theory of “respondeat superior” or vicarious liability. This theory of liability applies when employees are acting within the scope of employment or for the benefit of employer. Thus, when an employee has an accident while driving a company vehicle to or from a job site or for other business reasons, the employer will be named in the suit and may be held vicariously liable for the employee’s negligence. The same theory could be used to hold an employer liable for an accident involving one of its employees who is texting while driving.

The case for employer liability would be even stronger if there were evidence that the employer was texting its employee during the course of employment. How would a judge or jury react to an employee testifying that he had to read a text message because it was from his employer? For this reason, it would be a good idea for all employers to adopt a written policy prohibiting the use of cell phones and text messaging while at work in company vehicles. As with other safety policies, it frequently pays to repeat the rules, even when the rules are simply common sense.

Having a policy and enforcing it also contributes to avoiding regulatory violations and subsequent fines. In 2010, the Dept. of Labor’s Occupational Safety and Health Administration launched an education campaign called the Distracted Driver Initiative that encourages employers to prevent work-related distracted driving, with a specific focus on prohibiting texting while driving. OSHA also clearly states: “Employers who require their employees to text while driving — or who organize work so that doing so is a practical necessity even if not a formal requirement — violate the OSH Act.”

Michael P. Coyne is a founding partner of the law firm Waldheger Coyne, located in Cleveland, OH. For more information of the firm, visit: www.healthlaw.com or call 440.835.0600.