Cell phones, liability and lawsuits

Suits against cell phone users also target employers

December 29, 2002

By Laura Parker
Gannett News Service

[...] On March 8, 2000, during a nighttime call, [Jane Wagner] hit and killed a 15-year-old girl, Naeun Yoon, on a busy highway in Fairfax County, Va., just outside Washington.

Now Yoon's parents have filed a civil suit against Wagner. But in seeking $30 million in damages, Yoon's father, Young Ki Yoon, also is suing Wagner's former employer, the law firm Cooley Godward, based in San Francisco.

At the heart of the claim against the law firm are the cell phone calls Wagner made when she was working. The suit alleges that the firm is partly liable for the accident because Wagner's job involved doing business by cell phone. Such calls, the suit says, were done ''with the expectation and acquiescence of Cooley Godward and served as a direct benefit to ... the law firm.'' [...]

Several reports have shown that talking on a cell phone while driving is every bit as dangerous as driving while drunk.  The amount of attention being paid to the road is considerably less than what is typically required for safe driving, and its easy to get so wrapped up in the conversation that everything else - including objects, people, other cars, turns, traffic signs or lights, and the rest - becomes secondary.  Some reports even suggest that this problem isn't limited just to cell phone users, but also to people who are just engaged in conversation with their passengers or are using the "hands-free" devices that are supposed to help you be less distracted by the phone.  (While I can see how they are VERY handy, and help ensure that you can have both hands available for running and steering the car, I fail to see how making it "hands free" would automatically make it safer -- I would think that only a "brain free" setup would do that).

Given the above, I have little difficulty with the family of the victim suing Ms. Wagner for killing thier daughter.  There's been enough publicity over the last several months about the hazards of driving while talking on a cell phone, and in several localities, laws are being passed to make talking on the phone while driving illegal, so it doesn't seem unreasonable to expect someone to know that.   I do, however, have some problems with them suing the law firm Ms. Wagner works for.

While I'm no expert on the law, were I on a jury considering this matter, there are a few things I'd want to know:

• Did Ms. Wagner's employer require her to have a cell phone, or could she have had the option of using, for example, an alphanumeric pager that can send text messages from the caller to the recipient? 
  
  


• Did the company tell her that, if she was called on the cell phone while in the car, that she must address the issues immediately, or could she let the caller know that she was on the road at the moment, and would call back as soon as she could safely pull into a rest stop?

In my opinion, if the comany didn't require her to have a phone, or if they were willing to allow the use of pagers and give their employees a window of 15-20 minutes in which to respond to any given call, or if they wanted her to have a cell phone, but were willing to allow employees to find a place to pull over in order to handle client calls, then the company should not be held liable for the poor choices made by their employee.  On the other hand, however, if they did require that she use a phone, be available immediately, and expected her to talk while on the road, the plaintiffs might have a somewhat better case. 

Along with our nations growing addiction to lawsuits over any matter, we also seem to be growing addicted to the idea that if something happens to us, we're entitled to a huge windfall - so large, in many cases, that it is unlike those seen even by all but the luckiest of lottery winners.  This, of course, stems from the idea that we deserve to be compensated for any suffering we must endure, especially if we can find someone else to blame for it.  Yet if we look at this country, let alone the world, we can see examples on an hourly basis of people who have suffered greatly but have no hopes for compensation of any kind.  Not all of these people are in such dire straights because of there own actions.  Some suffer due to the accident of birth - who they were born to and where they live. Others suffer from injuries sustained in an accident.  Still more suffer from diseases and disorders that rob their lives of what joy is available to them.  Yet these people have no one to sue - no one to give them that same windfalls that the middle to upper classes enjoy.

As time goes forward, it becomes apparent that, at some point - and hopefully sooner rather than later -- there will need to be built into the system a better way of screening out bogus, frivolous and harassing lawsuits, and penalize those who repeatedly make filings for such messages.  Any such code, however, should be designed in such a way that it does not deter people who have legitimate grievences, but helps make it harder for people to use lawsuits as a means of extortion, rather than a means of justice.