Twist in The Cell Phone Wars
latest legal and legislative bell ringer involves the use of hand
held cell phones while driving. On December 1, New York will become
the first state to ban the use of such devices while driving an
automobile. Meanwhile, more than 38 other states are considering
some type of restrictions of their own on cell phones and driving
Hung Up On Cell Phones ").
the legal front, trial lawyer Peter Angelos recently filed class
action lawsuits in Maryland and three other states against major
cell phone manufacturers claiming they failed to warn customers
about health risks that they allegedly have long known of (read:
Up on Junk Science Lawsuits").
latest twist in the cell phone wars comes from a $30 million wrongful
death suit filed earlier this month in Virginia. It seems a lawyer,
who was allegedly making business calls from her cell phone while
driving, swerved off the road and struck and killed a 15-year old
pedestrian. According to the Legal Times, the father of the
teenager has filed suit not only against the lawyer, Jane Wagner,
but her Palo Alto-based law firm, on whose behalf Wagner was allegedly
making the calls while driving.
Plaintiff, Mr. Young Ki Yoon, claims that Ms. Wagners law
firm expected her to make calls while driving and directly benefited
from Ms. Wagners increased billable hours as a result of her
performing client-related work over the cell phone. According to
legal experts, the case may come down to whether or not Ms. Wagner
was acting within the scope of her employment.
loss of a child is a tragedy, but Ms. Wagners carelessness
behind the wheel has been punished by a sentence of five years in
jail (with all but one year suspended), leaving behind a newborn
baby. She subsequently lost her job and her law license and now
faces the wrongful death suit. Beyond that, we suspect a legal theory
in search of a deep pocket.
Wagners firm may have demanded a lot of work from their employee,
yet the firm does not supply its attorneys with cell phones; they
did not place a cell phone in her hand on that fateful night at
that fateful moment; they did not divert her attention from the
road. Whats more, allegations by investigators and eye witnesses
in a May 2001 Washingtonian article indicate that alcohol
may have been involved in the accident.
the law firm liable would set a dangerous and overly broad precedent.
What if, for example, Ms. Wagner had fallen asleep behind the wheel
when she struck the teenager? Could her law firm be held liable
for having overworked her and deprived her of sleep? What if it
was one of Ms. Wagners clients who had called her in the car,
thus diverting her attention from the road? Could that client be
held liable for distracting her when she swerved off the road? The
possible scenarios are endless. Regardless, in the wonderful world
of torts, this action must serve notice on all employers. As more
and more traffic accidents are being blamed on cell phone usage,
this may not be the last of these types of lawsuits.
to Legal Archive 2001