BEWARE OF EMPLOYEE CELL PHONE USE

California case last month holds cell phone use by employee before auto accident does NOT result in employer’s liability

Recent case from last month teaches how careful employees have to be when using their cell phones for work, even after hours, and how employers need to have policies and procedures and insurance to guard against this liability.

In Ayon v. Esquire Deposition Solutions, LLC (2018), the plaintiff was injured in an auto accident by a woman who worked (ironically) as scheduling manager for a court reporter service. At the time of the accident, which was after work hours,

the scheduling manager was on her cell phone with one of her firm’s court reporters. At her trial the plaintiff tried to make the employer responsible for the employee’s accident based on the doctrine of “respondeat superior” which is the law

that makes employers liable for the tortious actions of their employees committed within the scope of their employment.

The defense moved for a summary judgment that the employer was NOT liable because the conversation allegedly had NOTHING TO DO WITH WORK. The driver testified in deposition that she and the court reporter with whom she was

speaking on her cell phone at the time of accident were friends. The trial court judge granted summary judgment in favor of the employer.

The appellate court AFFIRMED in a lengthy discussion about vicarious employer liability for the actions of employees, and in particular cell phone use.

The Court said that it may have ruled differently if the plaintiff had been able to offer more proof that the phone call was in fact business related.

LESSON FROM THE CASE: employers can be held liable in certain situations for employees’ cell phone use after hours if it can be shown by sufficient evidence that the call was work related.