Subject: [NEXTEL-1] Doing Business by Cellphone Creates New Liability Issues

From: Marcel <[email-masked]>
Date: Tue, 03 Dec 2002 03:22:00 -0500

http://www.nytimes.com/2002/12/03/technology/03CELL.html

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/ 

December 3, 2002

International

National

Washington

Business

Technology

-

Circuits

-

Columns

Science

Health

Sports

New York Region

Education

Weather

Obituaries

NYT Front Page

Corrections

Editorials/Op-Ed

Readers' Opinions

Arts

Books

Movies

Travel

Dining & Wine

Home & Garden

Fashion & Style

New York Today

Crossword/Games

Cartoons

Magazine

Week in Review

Multimedia/Photos

College

Learning Network

Archive

Classifieds

Book a Trip

Personals

Theater Tickets

NYT Store

NYT Mobile

E-Cards & More

About NYTDigital

Jobs at NYTDigital

Online Media Kit

Our Advertisers

Your Profile

E-Mail Preferences

News Tracker

Premium Account

Site Help

Privacy Policy

Home Delivery

Customer Service

Electronic Edition

Media Kit

Community Affairs

Text Version

Get the IBM wireless white paper today.

Ink Cartridges Cost too Much? We Can Help

No-Fee IRAs & $7 Online Market Orders

Free shipping on Wave® radio/CD

Welcome, bullshit

Today's News Past Week Past 30 Days Past 90 Days Past Year Since 1996

<SCRIPT language='JavaScript1.1' SRC="http://ad.doubleclick.net/adj/N771.nytimes/B1095294.10;abr=!ie;sz=468x60;ord=2002.12.03.08.23.21?">
</SCRIPT>
<NOSCRIPT>
<A HREF="http://ad.doubleclick.net/jump/N771.nytimes/B1095294.10;abr=!ie4;abr=!ie5;sz=468x60;ord=2002.12.03.08.23.21?">
<IMG SRC="http://ad.doubleclick.net/ad/N771.nytimes/B1095294.10;abr=!ie4;abr=!ie5;sz=468x60;ord=2002.12.03.08.23.21?" BORDER=0 WIDTH=468 HEIGHT=60 ALT="Alt Text"></A>
</NOSCRIPT>

Doing Business by Cellphone Creates New Liability Issues
By JONATHAN D. GLATER

obile phones, two-way pagers and other tools of modern life now mean that business can be conducted just about anywhere at any time. But that technological boon may make companies liable if employees using those gadgets are involved in accidents — usually car accidents.

Already, Smith Barney, the investment banking firm, has paid $500,000 to settle a lawsuit brought by the family of a motorcyclist killed in Pennsylvania by one of its brokers who was talking on the phone while driving, according to a lawyer for the victim's family. But in Minnesota, where a psychiatric nurse reached for her cellphone while driving home and rammed another car, the jury concluded that answering the call was not part of her job.

Advertisement

<SCRIPT language='JavaScript1.1' SRC="http://ad.doubleclick.net/adj/N815.nytimes/B1080108.6;abr=!ie;sz=120x600;P_Site=S845;ord=2002.12.03.08.23.21?">
</SCRIPT>
<NOSCRIPT>
<A HREF="http://ad.doubleclick.net/jump/N815.nytimes/B1080108.6;abr=!ie4;abr=!ie5;sz=120x600;P_Site=S845;ord=2002.12.03.08.23.21?">
<IMG SRC="http://ad.doubleclick.net/ad/N815.nytimes/B1080108.6;abr=!ie4;abr=!ie5;sz=120x600;P_Site=S845;ord=2002.12.03.08.23.21?" BORDER=0 WIDTH=120 HEIGHT=600 ALT="Alt Text">Alt Text</A>
</NOSCRIPT>

The resulting confusion over the law is one reason that employers and their lawyers will be closely observing the outcome of a suit filed in Virginia against a law firm whose associate was driving and, the plaintiffs contend, talking to clients when she killed a teenage girl in the summer of 2000. That trial is scheduled to begin next week.

These cases and several others like them are plowing new legal ground in determining the ways companies will be responsible for events outside the traditional workplace and outside traditional work hours. They have employers nervously trying to develop policies to prevent or reduce their exposure to such lawsuits, employment lawyers say. But it is not easy because no one is sure what kind of policy will shield companies against liability.

"Employers have been liable for negligence for years, but the application of the negligence doctrine to our technological society is in fact relatively new," said Gerald D. Skoning, a lawyer with Seyfarth Shaw in Chicago. "Prudent employers need to be wary of this new area."

Some companies have instructed employees simply to follow the law; if the law prohibits using a handset while driving, then employees must comply.

But that may not protect them against responsibility for an employee who makes a work-related call anyway while driving. Other companies have gone further, barring employees on the job from using cellphones at all to eliminate potential distractions.

Cellphones are not the only potential risk, lawyers say. All kinds of gadgets that let people work on the road — beepers, laptops, two-way pagers and the like — may lead to situations in which an employer could be found "vicariously liable," Mr. Skoning said. For example, an employee crossing the street might be typing so vigorously into a two-way pager that he would never notice an approaching bus. Would that employee be covered by workers' compensation?

Probably, unless a company policy forbade wandering around typing into pagers, said Lawrence Lorber, a partner at Proskauer Rose in Washington. But nothing is certain, he added. "I don't know that a lot of this has been addressed," he said. "It's all new, so you're going to have very few reported cases."

Cellphones create problems for more employers than do older forms of mobile communication, like CB radios. Those radios and tools like them are often used by truck drivers and others whose job it is to be on the road, leaving employers clearly responsible for any accidents caused by their drivers. Mobile phones, because they allow people whose job may be at a desk to work from a car — even when their job is not to drive — may make thousands of new companies liable.

The Virginia lawsuit against Cooley Godward, the employer of the lawyer who ran over a 15-year-old girl, could help set a precedent in this fuzzy area. The lawyer, Jane Wagner, pleaded guilty to a felony and has already completed a one-year work-release program, according to her lawyer. Now the civil suit against the law firm is about to begin.

Civil lawsuits against the employers continue independently of any criminal case against the individual employee, lawyers said. For example, the Smith Barney broker served less than a year in a work-release program after pleading guilty to manslaughter, according to his lawyer, John Waldron. Smith Barney settles the civil lawsuit in 1999, according to Edward R. Eidelman, a lawyer for the family of the victim.

Continued
1 | 2 | Next>>

National Briefing | Washington: Safer Child Auto Seats  (August 28, 2002)

No Particular Place to Go  (July 7, 2002)
$

National Briefing | Southwest: Arizona: Ford To Look Closely At Its Police Cars  (June 26, 2002)

National Briefing | Washington: College To Study Blacks And Seat-Belt Use  (June 1, 2002)

Find more results for Roads and Traffic and Automobiles .

Doing research? Search the archive for more than 500,000 articles:

Today's News Past Week Past 30 Days Past 90 Days Past Year Since 1996

Click Here to Receive 50% Off Home Delivery of The New York Times Newspaper.

Home | Back to Technology | Search | Corrections | Help | Back to Top

<SCRIPT language='JavaScript1.1' SRC="http://ad.doubleclick.net/adj/N771.nytimes/B1095294.10;abr=!ie;sz=468x60;ord=2002.12.03.08.23.21?">
</SCRIPT>
<NOSCRIPT>
<A HREF="http://ad.doubleclick.net/jump/N771.nytimes/B1095294.10;abr=!ie4;abr=!ie5;sz=468x60;ord=2002.12.03.08.23.21?">
<IMG SRC="http://ad.doubleclick.net/ad/N771.nytimes/B1095294.10;abr=!ie4;abr=!ie5;sz=468x60;ord=2002.12.03.08.23.21?" BORDER=0 WIDTH=468 HEIGHT=60 ALT="Alt Text"></A>
</NOSCRIPT>

Copyright The New York Times Company | Permissions | Privacy Policy

Benefits of Phones in Cars Found to Equal Costs
(December 2, 2002)

Success of Cellphone Industry Hurts Service
(November 18, 2002)

A Cool Cellphone Ring as Style Statement, and Promise of Profits
(November 7, 2002)

An End to Cellphone Telemarketing?
(October 21, 2002)

Environmentalists Identify New Menace: Discarded Cellphones
(October 8, 2002)

Personal Health: Cellphone: A Convenience, a Hazard or Both?
(October 1, 2002)

Topics

Alerts

Roads and Traffic

Automobiles

Automobile Insurance and Liability

Telephones and Telecommunications

Create Your Own | Manage Alerts
Take a Tour

Sign Up for Newsletters

Traffic court on wheels, Inglewood, Calif., 1926.

Price: $195. Learn More.

You can know play NYTimes.com's Featured Special Crossword

"Airports Around the Country". Are you game?

Click here and find out more.

SEARCH FOR SINGLES

I am a

Seeking a

Male
Female

Male
Female

Create a free photo profile

Contact others now!
(under $25/month)

Read dating success stories