We see it every day, whether driving on a crowded interstate or through a local school zone, a large number of drivers appear more interested in their cell phone conversations
We see it every day, whether driving on a crowded interstate or through a local school zone, a large number of drivers appear more interested in their cell phone conversations than in driving safely. It is undisputed that this recent trend has led to an increased number of automotive accidents, which impacts both employers and insurers.
It is a well accepted rule in Georgia that injuries suffered by traveling employees are compensable when the employee’s work duties expose him to perils he would not otherwise have encountered. Thornton v. Hartford Acci. & Indem. Co., 198 Ga. 786, 820-21 (1945). If an employee is involved in an automobile accident while on his employer’s business, the resulting injuries will be found to have arisen out of and in course of his employment. As negligence is not a defense under the Workers’ Compensation Act, even if the accident is caused by a distraction, the resulting injuries will likely be compensable. However, does that rule hold true where an employee is not traveling for his employer but is, nonetheless, discussing employer business on a cell phone when the accident occurs?
Although Georgia courts have yet to address this issue in terms of workers’ compensation, a recent decision from the Virginia Court of Appeals suggests that, if an accident is the result of a business related cell phone distraction, the accident can be traced to the employment. Accordingly, injuries the employee suffers as a result of that accident may be compensable. Wythe County Community Hospital v. Turpin, No. 02008-11-3 (Va. Ct. App. 10/04/11). In Turpin, an on-call hospice nurse lost control of her vehicle while reaching to answer a phone call she expected to be work related. The court found that because the employee’s job as an on-call nurse required her to “carefully monitor her cell phone calls,” the mere possibility that the phone call was from her work meant that the act of reaching for her phone could “fairly be traced to the employment as a contributing proximate cause” of her injuries. Id. A similar result might well be reached if presented in Georgia.
On the other hand, what about those employees who are traveling for work, and are clearly instructed by their employers to refrain from using cell phones for non-work related purposes while driving, but become distracted by personal phone use nevertheless. It is long established that Georgia does not provide workers’ compensation benefits for injuries resulting from an employee’s “willful misconduct.” O.C.G.A. § 34-9-17(a). Most commonly, we have seen this scenario in the form of horseplay, drug use, or deliberate attacks by a third party. Considering the significant safety hazards created by distracted drivers, there is an argument that theviolation of a cell phone policy may also constitute “willful misconduct” sufficient to bar workers’ compensation benefits.
In Aetna Life Ins. Co. v. Carroll, the Georgia Supreme Court held that the mere violation of a rule, instruction, or statute does not, in itself, constitute willful misconduct. 169 Ga. 333 (1929). Alone, these violations typically constitute negligence which, no matter how gross, does not amount to willful misconduct within the meaning of the statute. However, where a party can show a purposeful intent to violate the rule, and that the violation was a proximate cause of the work injury, there is evidence of willful misconduct. Id. The employee does not have to intend the resulting injury; he must only intend to do the act that violated the statute and proximately caused his injury. Id.; Armour & Co. v. Little, 83 Ga. App. 762, 766 (1951); Shiplett v. Moran, 58 Ga. App. 854, 856-57 (1938). Under this standard, the violation of a company policy restricting cell phone use while driving is clear misconduct. Unlike many traffic violations that can be explained by carelessness or mistake, the use of a cell phone requires a conscious choice to act. Furthermore, now that the Georgia legislature has declared it a misdemeanor offense to text and drive, texting in violation of this new statute would also, under the same analysis, constitute willful misconduct sufficient to bar workers’ compensation benefits. OCGA § 40-6-241.2.
Due to the current “smartphone” craze, employees are more connected to their work than ever before. At all times of the day, workers are just a click away from email, text messages, or phone calls to discuss business. With this growing reliance on cell phones and other communication devices, it is becoming more important for employers to enact rules against using cell phones while driving and to enforce those rules. There are two recent liability cases in which the Georgia Court of Appeals acknowledged that the use of a cell phone for “business purposes” could bring an employee within the course and scope of his employment. CLO White Company v. Lattimore, 263 Ga. App. 839 (2003); Hunter v. Modern Continental Construction Co., Inc., 287 Ga. App. 689 (2007). Under the doctrine of respondeat superior, employers could thereby be held vicariously liable for any tortious act committed by their employees while in that role.
In light of the above, Georgia employers would be wise to do two things. First, have a definite company policy regarding the use of cell phones for traveling employees. Second, thoroughly investigate any accident where a cell phone may be involved. By putting these policies in place, employers can, arguably, better protect themselves from liability.