I was rear-ended this morning while driving my twin ten-year olds to school.  I’m fine.  I was hit while stopped in heavy traffic on a typical rush hour morning, but it immediately occurred to me after getting rammed that the driver could not have been going more than five miles per hour and was likely looking at or talking on his cell phone.

Every morning on this same route I see rushed parents driving their kids to school while preoccupied looking down to the side to their cell phones.  I knew it was only a matter of time.  Luckily my kids were fine, too.   I got out of my car relieved there was no dings in my fender and pointedly asked the driver whether he was distracted by his phone.  I had to shake my head when he sheepishly claimed “no, I was just feeling under the weather.”  Yeah, right.

The thing is Honolulu’s ban on drivers using cell phones and other electronic devices went into effect July 1, 2009, over five years ago.  The law prohibits the use of cell phones without a hands-free device while operating a motor vehicle. It also prohibits text messaging, the use of laptop computers, e-mailing and electronic game-playing while driving.  Violators are subject to significant fines.

The law exempts emergency responders performing official duties and the use of two-way radios used for work-related duties and does not prohibit the use of a vehicle’s radio, CD player or navigational equipment, equipment providing emergency assistance to the vehicle operator, or video entertainment to passengers in rear seats.

While the law has been in effect for over five years the frustration level continues to build for this commuter.  It almost seems the problem of driving while distracted has gotten significantly worse.  Ironically, the ban has meant drivers are no longer pressing their phones to their ear, but looking down to their leg or their passenger seat where their phone sits in an attempt to avoid being observed by law enforcement, like the guy who rear-ended me.  On a typical short commute it is not unusual for me to see a driver either texting or speaking on their cell phone distracted to the point of weaving through traffic.

Since I am an employment lawyer let me relate this somehow to employment law.  Employers should be reminded that the law exempting the use of hands-free devices does not make it more difficult for either a driver or his employer to be found liable for harm caused by the employee’s vehicle while s/he is using a hands-free device for a business-related call. In fact, numerous studies have concluded that hands-free devices are no less dangerous than hand-held phones. Both types of activity effectively cause drivers to exhibit “tunnel vision”, staring straight ahead while distracted by their conversations and inhibit concentration on driving.

Thus, employers should consider revisiting the issue whether and to what extent conducting business calls “on-the-road” is permitted.  Under the doctrine of vicarious responsibility, employers may be held liable for the negligent acts of employees committed in the course of employment. Such liability may be found where the employer supplies the phone, or the employer encourages the driver to use it, whether or not the call is business-related.

Tort cases in which the use of a cell phone is alleged to have contributed to an auto accident demonstrate the real threat that a jury will find fault in the party most capable of making a victim whole, i.e., “deep pockets.” In one case, a Pennsylvania stockbroker, while talking on his personal cell phone, hit and killed a 24 year-old motorcyclist. The driver was driving to a non-business related dinner during non-work hours.

The driver claimed to be making a business-related “cold-call” when the accident occurred, which he and other employees claimed was expected of them by the employer. Faced with the specter of a jury awarding perhaps millions to the employee’s family, which included two children, the employer settled the case for $500,000, notwithstanding the fact that a company-owned phone was not used and the purported “cold call” was made during non-work hours.

Closer to home, in a recent case the State of Hawaii agreed to pay $2.5 million as its share of liability for an accident involving a state employee who was allegedly talking on her cell phone when she hit a tourist from New Jersey causing permanent brain damage to the victim. The State of Hawaii was found twenty percent liable for the plaintiff’s injuries.

Several general rules can be drawn from negligence cases arising from cell-phone related auto accidents. First, an employer is responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time an auto accident occurred, e.g., the employee was on a business-related call when the harm occurred, regardless of whether it was via a hands-free or a two-way radio device.

Second, there is a significant risk that liability of the employer can be established where the employee is conducting business-related calls on his/her own cell phone and on his/her own time, i.e., during non-business hours at the time an accident occurs.

Third, liability of the employer under these circumstances may be established not only on third-party claims, but also on workers’ compensation claims.

There are great legal risks associated with employees using cell-phones in any manner for business-related purposes while operating a vehicle. Accordingly, employers need to consider whether to implement a strict prohibition on the use of cell phones for business purposes while operating a motor vehicle.

If an employer feels that permitting the use of a cell-phone for business purposes, hands-free or not, is too great a risk then it should have a written policy to that effect. The employer should also require that employees sign an acknowledgment that a company-issued phone is not to be used while operating a vehicle, unless in connection with a bona-fide emergency. Reimbursement by the company for employees’ use of personal cell phones for business purposes should be conditioned on the employee acknowledging compliance with the company’s cell-phone use policy.

To the extent the employer permits the use of cell-phones for business-related purposes, it should make clear in a policy what it considers to be acceptable business-related purposes. In addition, the employer should require employees to familiarize themselves with the phone, to program frequently dialed numbers, and to encourage employees to consider carefully the traffic and weather conditions before engaging in the telephone call. To the extent that hazards exist the employee should be required to postpone the call until conditions improve or the employee is able to pull over and exit the vehicle.

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