In 2010, cell phone related car accidents caused over 3,000 deaths in the United States. That means one of every eleven traffic fatalities that year was caused by a person using their cell phone while driving. Among many of these “cell phone drivers” are employees using their cell phones to conduct business while on the road. Cell phones enable employees to conduct business far beyond the confines of their workplace, and well past their normal working hours. Beyond talking to clients or coworkers, an employee can also send work-related documents, emails, and text messages from his cell phone while driving―making him twenty-three times more likely to cause an accident. This dangerous practice has recently led to an explosion of cases alleging employer responsibility for injuries caused by employees who conduct business on their cell phones while driving. If an employee causes an accident while talking on his cell phone, two different theories possibly exist to hold the employer liable for the damages: (1) respondeat superior, and (2) direct liability.
Despite the modern challenges that cell phone driving presents to these theories, courts continue to apply traditional principles of employer liability to cell phone related cases—attempting to force a square peg into a round hole. To help courts adapt traditional doctrines of employer liability to cases involving the modern practice of cell phone driving, this Comment proposes three guidelines that courts should follow when deciding such cases. First, every jurisdiction should adopt the minority rule in cell phone related cases involving respondeat superior, which holds that, under particular circumstances, the employee is presumed to be acting within the scope of his employment, and the employer bears the burden to rebut that presumption. Second, every jurisdiction should follow California’s enterprise theory of liability when adjudicating cell phone related cases asserting respondeat superior, and use the Roszkowski test to apply the theory. Finally, this Comment suggests five factors that a court should balance to determine whether an employer may be held directly liable for the injuries caused by an employee using a cell phone at the time of the accident.
Part II.A of this Comment discusses recent cell phone statistics in the United States and the reasons why cell phones are so distracting and dangerous to use while driving. Part II.B lays out the steps a court currently follows to determine whether the party using a cell phone while driving negligently caused the car accident. Part II.B also provides various defense theories a party may adopt to defeat a negligence claim in a cell phone related case. Part II.C discusses the doctrine of vicarious liability as applied to the employer, and how Restatement (Second) of Agency principles of vicarious liability differ from California’s enterprise theory of liability. Part II.D analyzes the most recent employer liability lawsuits involving cell phone driving. Part II.E briefly discusses the two predominant policies underlying respondeat superior: enterprise liability and deterrence. Finally, Part II.F discusses the doctrine of direct employer liability.
Part III.A discusses the first proposed rule regarding the rebuttable presumption. This Comment rejects the majority rule, which places the burden of proof on the plaintiff to prove that an employee acted within the scope of his employment at the time of the accident. Instead, courts should adopt the minority rule, which holds that, under certain circumstances, the employee is presumed to have been acting within the scope of employment, and the employer must prove otherwise. Part III.B proposes that,in cases involving cell phone driving and employer liability, courts adopt California’s enterprise theory of liability and apply the Roszkowski test to determine scope of employment. The Roszkowski test enables courts to achieve efficiency, enterprise liability, and deterrence under respondeat superior. Finally, Part III.C suggests five factors that courts should consider to determine whether an employer should be held directly liable in cell phone related cases.