I.M. Dense, a stockbroker employed by BI Lough was driving to a non-business event when he struck and injured a motorcyclist. On personal time, in a personal vehicle and using a personal cell phone, Dense admitted that he was responding with text messages to “cold call” responses from earlier in the day. “Cold calls” are a common practice at BI Lough. Did I.M. Dense break the law? Even if he did not commit a crime / violation, is he responsible just for being on the phone? What about Dense’s employer BI Lough?

Texting Against the Law?

Maybe. It depends upon where I.M. Dense was and how old he is. If he is under 18 or in a school zone, he broke state law. Texas state law prohibits anyone under the age of 18 from driving and using wireless communications devices or from using a handheld device in a school zone. If I.M. Dense was texting and driving within the city limits of any one of 23 Texas towns including, for example, Austin, El Paso and San Antonio, he violated a city ordinance. Being ticketed for violating a city ordinance does not carry the same penalties as a state moving violation that would affect Dense’s driving record.

Dense Responsible for Damages?

Very likely, depending upon the facts. A judge or jury would have to find that Dense was more negligent than the motorcyclist. Almost certainly the Plaintiff motorcyclist’s attorney would rely upon a wealth of studies and statistics to aid his argument that driving and texting is, alone, being negligent. According to the National Highway Traffic Safety Administration 80% of crashes are caused by driver inattention, and by far the biggest source of this is cell phone use, with 11% of all drivers using phones at any given time. Drivers distracted by a mobile device are four times more likely to have an accident, while commercial truck drivers are an astounding 23 times more likely.

BI Lough Liable?

Possibly. Even if BI Lough had policies in place and did its best to warn its employees, the very fact that Dense was employed by BI Lough and was texting while driving gives the motorcyclist’s attorney an argument that BI Lough has liability. The most likely claims are: vicarious liability (sometimes called respondeat superior) and negligent hiring (or sometimes called negligent supervision & retention). Generally speaking, an employer can be responsible for harm done by its employee acting in the scope of employment (or its independent contractor if there is an agency relationship). For BI Lough to be responsible for negligent hiring, supervision or retention, the motorcyclist generally must show BI Lough failed to train Dense, failed to properly hire, train and supervise him, and that its failure to do so was, at least in part, a cause of the accident. Just as Dense’s admission to texting will hurt his case, the very fact that he was texting suggests that BI Lough failed to supervise.

Driving and Talking?

If you are over 18 and not in a school zone, AND using a hands free phone you are certainly not violating Texas state law (as of today), and you are probably not violating any city ordinance. If, however, you are not hands free, beware! Any number of cities have ordinances prohibiting the use of electronic devices while driving. Austin’s new ordinance prohibits cellphones, MP3 players, navigation devices, electronic games, messaging devices, and any other hand-held electronic device while driving OR while bicycling! For more on Austin’s bicycling prohibition, check out Cleve Clinton’s on-air interview with Dan Patrick, Houston’s radio talk show host.

Tilting the Scales in Your Favor.

Your best bet? Don’t text and drive, and regularly counsel and train your employees and independent contractors to put down their phones when driving. Know that, if there is an accident, admitting to texting immediately before the accident is likely to tip the scales against you and your employer / employee. If you are and using an electronic device while on a bicycle in Austin, you’re on your own! Warning: looking at a good looking gal or guy and swerving on your bicycle with earphones might earn you a ticket!

Previous Tilting Articles: Dangers of Employee Cell phone Usage