Growing evidence suggests that employers can be found to be vicariously liable should their employees get involved in cell phone-related car accidents while on company business. Should brokers be worried about their agents driving habits?

Smith Barney, the investment banking firm, recently paid $500,000 to settle a lawsuit filed in Pennsylvania. One of the firm's brokers had accidentally killed a motorcyclist because of distracted driving while talking on a cell phone. Another suit, scheduled to begin trial next week, concerns an associate in a law firm who was talking to clients when she hit struck and killed a teenage girl in 2000.

These cases and more, featured in a recent New York Times article called "Doing Business By Cellphone Creates New Liability Issues" by Jonathon D. Glater, raise interesting questions about employer liability when an employee or agent is involved in a cell phone-related car accident.

The article makes several sobering points:

• Plaintiffs will go after the deepest pockets they can find, including naming multiple defendants in lawsuits.

• The law is unclear as to employer liability in cell-phone/employee-related crashes. Some juries find the employer liable while others do not.
• Litigants are focusing on whether cell phone calls which may have contributed to fatal or injurious car crashes were personal or work-related.
• Insurers are looking at their own exposure, which is increasing with the tally of multiple defendents.
• Company rules about cell phone use while driving may not be enough to shield employers of blame should an employee have an accident and injure or kill someone else.

Should real estate brokers be worried?

That's one of the things that researchers such as Manbir Sodhi, a professor with the University of Rhode Island, would like to find out.

"The findings in the article make it imperative that in-car tasks be analyzed for their potential for distraction, ASAP," says Professor Sodhi. "Mobile technologies are evolving rapidly, and for there to be a revival of the electronics (dot com) sector, they have to increase their market segment. If the market is to increase, the potential risk increases in at least twice as fast - the individual driver is subject to more risk because of his/her distractions, and is also subject to increased risk because of the distractions of other drivers."

Professor Sodhi is a research specialist in industrial engineering and was instrumental in producing recent findings that cell phone use while driving can cause drivers to exhibit tunnel vision as they are distracted by their cell phone conversations. This "staring straight ahead" effect can cause drivers to miss dangers on the sides of their cars, increasing the likelihood of accidents. Dr. Sodhi's research at the URI is a "bottoms up approach" to looking at the problem, he says.

"We are now planning experiments that will give us data on driving habits, and the impact of specific devices on driving habits," says Sodhi. "This is a broad task because different groups of drivers may be impacted differently by the same device - however, the need for these studies is urgent. I am particularly concerned that the increase in risk may creep up and reach unacceptable levels for vulnerable groups such as real estate agents and younger drivers who now consider the use of cell phones while driving standard practice."

No current research exists that can tell whether or not real estate agents face higher risks of car accidents, because of their mobile lifestyles and their dependence on cell phones and other mobile technologies.

Professor Sodhi would like to study REALTORS on the job to see how much they drive, use their cell phones and other mobile devices while driving, and what their responses to different driving conditions are.

In a similar study, The Harvard Center for Risk Analysis found that cell phone-talking drivers are responsible for about 6 percent of U.S. car accidents each year, resulting in 2,600 deaths and 330,000 injuries. While the Harvard study found that the amount of time motorists spend on their phones is relatively small - 300 to 1,200 minutes a year, other studies performed by the Yankee Group, a Boston research and consulting firm, show that the majority of wireless minutes spent by cell phone users are used up in transit with the majority of minutes spent in cars. Multiply that by any agent's typical phone minute consumption, and there could be a disaster in the making.

There is no corresponding study that shows how much more or less Realtors may spend using cell phone minutes and much of that is consumed while driving.

Editor's note: If you are with a REALTOR association or brokerage and would like agents in your area to participate in Professor Sodhi's continuing research into cell phone use, please contact him at mso9644u@postoffice.uri.edu.

Published: December 9, 2002

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