Call it Off

by David G Propson

New York Governor George Pataki made headlines this summer by signing into a law a bill that banned the use of cell phones while driving. A number of states are considering similar laws, and several municipalities have already acted. This has caused much confusion and debate among technolophiles who fear having to choose between favorite acronyms: SUV or PCS?

But another recent legal development suggests much further-reaching consequences for cell phone-dependent businesspeople.

On March 8, 2000, a Virginia lawyer named Jane Wagner struck and killed a
15-year-old girl named Naeun Yoon. Wagner thought she’d hit a deer, and drove away. She discovered what had really happened the next morning, according to court papers filed by her defense attorney, and broke down in tears.

Wagner was fired from her job and disbarred. She pleaded guilty to failing to stop after an accident and received a sentence of five years, with all but one suspended. Naeun Yoon’s family felt she got off easy, and they have begun a civil case charging Wagner with wrongful death. They have included Wagner’s former law firm, Cooley Godward, in the suit.


The plaintiffs’ argument goes like this: If Wagner was calling on company business, they argue, her company should be held responsible. Furthermore, Wagner’s firm bills clients for every second their lawyers spend working on or talking about a case. The Yoons’ lawyers want to know if Wagner was on a work-related call.

The argument isn’t as far-fetched as it may sound, according to Lloyd Cohen, a professor of law and economics at the George Mason School of Law. “As a general matter, this isn’t much of a stretch,” Cohen says. “This is not an unusual category of liability.” The doctrine Cohen is referring to is what’s known as “vicarious liability”: If one person commits a wrong while acting at the behest of someone else, that someone else can be held legally responsible.

Vicarious liability underlies sexual harassment lawsuits and many other management nightmares. “When someone is an employee and is acting on behalf of his employer and commits a wrong, the employer can be held responsible,” Cohen explains.


But is a professional, talking on a cell phone while driving a car, really acting “at the behest” of their employer?

Cohen points out that courts will often find companies liable if a worker gets into a car accident while driving from one corporate office to another. If, however, the worker stops to pick up their dry cleaning, they are “on a lark” and the employer isn’t responsible for what happens. Talking on a cell phone may be a sort of lark — a law firm asks lawyers to bill phone calls made to clients, but in no way requires that they make those calls while driving.

One way companies try to reduce liability in such situations is by creating a policy about the potentially dangerous behavior. Cooley Godward doesn’t have a policy about cell phone usage — but then neither does most anyone else. Until now, they just haven’t seemed necessary. Cohen says employers might consider developing such policies in the future. If so, they must also be willing to enforce them. If you have a policy on cell phone usage (or sexual harassment) and let misbehaviors pass, it may be worse.


The courts will settle the fate of Wagner and her firm. For the rest of us, the words “cell phone safety” may begin to summon images of ruined careers and bankrupt businesses, rather than cancer scares.

But employers can play an important role in this developing debate. “Does it matter if you’ve told your employees: ‘Never use a cell phone while driving’?” Cohen asks. “It certainly doesn’t hurt.”

Questions of law and policy tend to pale when compared with matters of life and death. Even if a business can’t be held legally responsible for a traffic tragedy, the business owners may not want to wonder whether anything they told their employees might have prevented it.

Small Business Computing Staff
Small Business Computing Staff
Small Business Computing addresses the technology needs of small businesses, which are defined as businesses with fewer than 500 employees and/or less than $7 million in annual sales.
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