Whether Hands-free, Handheld, Texting or Talking, Distracted Driving Is Deadly

Vicarious Liability

Under the legal theory of vicarious liability, an employer is liable for the negligent actions of its employee if he or she was acting within the scope and course of employment at the time of the accident. This analysis is fact intensive and often left to the jury to decide. Using this standard, courts have routinely allowed claims against employers to survive motions practice even when the accident occurred while the employee was:

  • driving after normal business hours
  • en route to a personal event
  • sightseeing on a business trip
  • operating a personal vehicle
  • utilizing a personal mobile device

In Clo White Co. v. Lattimore, the court held a jury question remained as to whether the employer was vicariously liable for the accident causing conduct of its employee because the employee “may have been” calling his employer’s office at the time of the collision. The accident occurred at or about 7 a.m., and mobile-device records confirmed the employee called his employer at 7:01 a.m., 7:02 a.m. and 7:03 a.m. The court recognized under normal circumstances an employer would not be liable for an accident caused by an employee who was going to or coming from work. But the fact an employee may have been on his mobile device conducting work-related business at the time of the accident creates “special circumstances” that justify an exception to the rule.

Direct-negligence Claims

In the event of an accident, the company should expect the injured claimant to allege the company was directly negligent. Direct-negligence claims generally require proof the company knew or should have known the hiring or retention of the employee–or the entrustment of a vehicle and/or mobile device to that person–created an undue or unreasonable risk of harm to the public.

When evaluating these claims, courts consider whether the company organized work such that the employee was expected to use his or her mobile device while driving, implemented adequate policies to prohibit or discourage mobile device use while driving, had actual or constructive knowledge the employee was engaging in risky behavior, warned about the hazards and risks associated with distracted driving, and/or hired an employee with a poor driving record.

Punitive-damages Claims

In cases involving motor-vehicle accidents, punitive damages are typically authorized when the collision results from outrageous volitional conduct, such as excessive speeding or driving while intoxicated, but not when the driver simply violates a rule of the road. For distracted driving to convert a garden-variety accident into a punitive-damages case, courts look for a history of distraction-related behavior; prior accidents; an unenforced, untrained and/ or nonexistent corporate safety policy; and/or other evidence that would tend to show outrageous circumstances.

In Boyle v. Pardall, a case that may be a harbinger of claims to come, the court found the injured plaintiff stated a colorable claim for punitive damages because the employee-driver “intentionally use[d] a cell phone while driving.” Critically, the court keyed in on the volitional nature of this conduct as the sole factor in deciding that the punitive-damages claim should survive motions practice and observed the driver’s employer did not require the use of hands-free technology and did not issue written guidelines or precautions about the use of mobile devices while driving.

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About Matt Howard

Matt Howard is chief marketing officer at Aegis Mobility, Burnaby, British Columbia, Canada. He collaborated with a law firm specialized in defending corporate clients in complex litigation matters.

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