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Legal experts wary of new cell law

By   /   Friday, June 27th, 2008  /   Comments Off on Legal experts wary of new cell law

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The coming restrictions for on-the-road cell phone use may have teenagers angry and Bluetooth headset makers swimming in money like Scrooge McDuck, but the new laws have legal implications for businesses.
The laws – which take effect July 1 – impose a $20 penalty for the first driving-while-talking offense and $50 for violations thereafter.

But those fines are the least of companies’ worries.

With the public’s general annoyance with on-the-road gabbers codified into law, juries are more likely than ever to look for deep pockets in litigation over accidents involving mobile phones, according to legal experts.

“If an employee hurts somebody when on a cell phone, the jury is going to want to find somebody to pay for it – likely the employer,” said Karen Gabler, a partner in Oxnard-based Nordman Cormany Hair & Compton.

The new laws mandate that adult drivers use a hands-free device while driving and talking on a mobile phone, with exceptions for emergencies. Drivers younger than 18 years old will be barred from talking on phones at all while driving.

Businesses are adapting. Chris Chirgwin, chief executive officer of Santa Barbara-based technology firm Lanspeed, said his company bought hands-free devices for all employees who travel in the course of their work.

“They all had to sign an agreement stating that they understand it’s company policy to use a headset when talking while driving,” Chirgwin said.
Other companies that communicate on the road as part of doing business already impose similar policies.

“It’s not a change to us at all,” said Eric David Greenspan, whose company, Santa Barbara-based Make It Work, relies on mobile phones to communicate with tech support workers who rove most of Southern California.
“We’ve required a hands-free device since day one,” Greenspan said. “We write up our guys if they don’t use them.”
But firms whose employees talk while driving should be wary of potential lawsuits from every conceivable angle.
A wreck while talking on THE phone in a company car or talking on a company phone are obvious sources of litigation. But even calls made on a non-company phone in a non-company car could lead a jury to come after an employer if the call was made on company business.
Employees could even sue their employers in a mobile-phone-related accident, arguing that refusing to engage in a call while driving would have affected their employment.
Gabler said the best advice for companies that want to limit their liability is a simple rule: no phone calls while driving. But that’s hard to do unless the company owns the car and the phone.
“I think it’s the ideal result, but it’s probably unrealistic with the commutes that people have in Southern California,” Gabler said.

In lieu of an outright ban, Gabler said, employers can mandate a “no company business” rule, requiring employees to forgo or leave unanswered work-related calls. And if the company owns the phones, they should be prepared to pay for some new equipment.

“If they are providing phones or expect employees to use phones [for] the job, they need to provide hands-free devices and implement pretty severe consequences for failing to follow the law,” Gabler said.

“Employers might want to check with their vehicle insurance policies, too,” Gabler said. “What do they need to do to make sure their insurance covers any violation that occurs during cell phone usage? Now we’re not talking about reckless driving, but a flat out violation of law.”

Employees are likely to use mobile phones on the road anyway, especially in the first months under the new restrictions. But the change in law should tell companies that the public – and potential juries – are drawing lines about acceptable mobile phone use.

If companies want to avoid being smacked with heavy judgments, they should show they understand, Gabler said.

“Personal annoyances are going to overflow in litigation settings,” Gabler said. “The more the employer can show that they have done everything they can to protect the public, the better off they’ll be.”

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