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New Twist in The Cell Phone Wars

The 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 (read: "States Hung Up On Cell Phones ").

On 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: "Hanging Up on Junk Science Lawsuits").

The 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.

The Plaintiff, Mr. Young Ki Yoon, claims that Ms. Wagner’s law firm expected her to make calls while driving and directly benefited from Ms. Wagner’s 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.

The loss of a child is a tragedy, but Ms. Wagner’s 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.

Ms. Wagner’s 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. What’s more, allegations by investigators and eye witnesses in a May 2001 Washingtonian article indicate that alcohol may have been involved in the accident.

Finding 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. Wagner’s 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.

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