Targeting Workers Who Talk and Drive

NEW YORK — Attorney Jane Wagner was so busy talking on her cell phone while driving that she thought the teenager she had struck was a deer. It wasn’t until the next morning when she heard that a hit-and-run driver had killed a 15-year-old girl that Wagner realized what she had done.

Whether Wagner was making work-related calls when the accident occurred is a matter for the courts to decide, but a $30-million suit against her firm is causing some employers to restrict mobile phone use on the road, ahead of legislation by most states.

“The recent lawsuit focused our attention, but it’s a common sense safety concern,” said David Fuss, a partner at Wilkes Artis, one of several Washington, D.C., law firms that have enacted curbs on cell phone use. “Our policy is that personnel are not to conduct business while [driving] using cell phones, unless they pull over and stop or use a hands-free device.”

Even General Motors Corp., whose OnStar subsidiary sells embedded or hands-free mobile phones for cars, is revising guidelines for its own workers.

“Stay tuned. We’re getting there,” said spokeswoman Carolyn Markey. “We’re working on a new policy regarding all distractions and it should be available soon.”

Alarmed by increasing reports of accidents, New York in June became the first state to ban the use of hand-held cell phones by drivers. Curbs are pending in 42 other states. Japan, Israel, Portugal and Singapore are among 23 countries to have restrictions.

Beyond mobile phones, there is also increasing debate over a host of devices that let drivers send e-mail, check appointments or, in the case of OnStar, get driving directions and access so-called concierge services for movie times and restaurant suggestions. GM maintains a “SenseAble driving” Web site with educational tools to help motorists stay focused.

Chemical companies have long restricted what drivers can do behind the wheel.

“Safely operating a motor vehicle requires a driver’s total attention,” reads DuPont Co.’s personnel policy. Praxair, a $5-billion industrial gas supplier, banned cell phone use in 1999.

But limiting liability is clearly behind the latest spate of policies, according to Tom Harrison, publisher of Lawyers Weekly USA, a national newspaper and Web site that tracks litigation trends for small firms.

“Companies get a lot of benefit from employees’ productivity while talking on the phone from their car,” Harrison said. “It’s still a question if they should be responsible for any accidents that result, but if most people think it’s dangerous and should be banned, that’s your jury pool.”

Attorney Wagner turned herself in to police March 9, 2000, the morning after Naeun Yoon was killed. She pleaded guilty to a felony hit-and-run and is serving a one-year sentence at a work-release program.

The girl’s father filed a wrongful-death suit this summer against Wagner and her high-tech law firm, Cooley Godward. Although the details are under dispute, the complaint states that Wagner was returning home from an aborted 10 p.m. meeting at a Tyson’s Corner, Va., restaurant and made a series of work-related calls around the time of the accident.

Because of the litigation, the firm will not comment, except to say that the teen’s death was a tragedy.

In another case, Salomon Smith Barney settled a 1997 suit for $500,000 when one of its brokers ran a red light and killed a motorcyclist in Allentown, Pa., reportedly while trying to retrieve a dropped cell phone. The firm admitted no guilt.

Under the law, companies bear “vicarious responsibility” if their employee’s negligence causes an accident.

Jonathan A. Segal, a Philadelphia attorney who advises companies on avoiding employment litigation, is drafting policies for several clients of his firm Wolf, Block, Schorr & Solis-Cohen.

But legal experts say specialized mobile-phone policies can’t completely shield employers.

“There’s nothing special about the cell phone,” said Kenneth Abraham, a professor of tort and insurance law at the University of Virginia in Charlottesville, Va.

Companies still can be responsible if employees are only slightly deviating from their assigned tasks when the accident occurs, but not when staff do something “they really weren’t supposed to do,” he said.

Still, Abraham thinks the new guidelines make sense.

“If they have a policy, their employees are less likely to have accidents.”