Ohio’s statewide ban on texting while driving went into effect on August 31, 2012 and is now the law. See Ohio Revised Code §§ 4511.204 & 4511.205. House Bill 99, which set forth the ban, was signed into law on June 1, 2012, at which time Ohio became the 39th state to ban texting while driving, and the first to place strict restrictions on texting while driving for teens.
While the law provides for only criminal penalties, Ohio employers could face potential civil liability for tort claims arising from accidents that occur as a result of a worker texting while driving. Under the common law doctrine of respondeat superior, an employer can be held vicariously liable for the negligence of employees, even if the employer has not acted negligently. To find an employer liable on a theory of respondeat superior, the employee must be acting within the scope of employment or for the benefit of an employer. In determining whether an employee is acting within the scope of employment or for the benefit of an employer, Ohio courts consider: (1) whether the employee is engaged in conduct of the sort he or she was employed to perform; (2) whether the conduct occurred at a time and within a space within the authorized scope of the employment; and (3) whether the conduct is motivated by an intent to serve the employer.
For example, a truck driver who causes an accident while texting during the course of a delivery during the workday could subject his or her employer to liability for the accident because the truck driver was acting for the benefit of the employer at the time the accident occurred. However, a truck driver who causes an accident while texting on his or her drive home from work would not subject an employer to liability unless the text message related to work or was transmitted on a company phone, as the commute to and from work generally is not considered work time.
Furthermore, even absent a finding of vicarious liability, at least one federal court has determined that an employer could be held individually liable for failure to maintain adequate policies and procedures on texting while driving. For example, last August in McLand v. Rich Transport, Inc., the U.S. District Court for the Eastern District of Arkansas ruled that the plaintiffs could pursue claims against an employer based on its alleged “fail[ure] to train, educate, direct, prepare, set policy, or give guidance to its … drivers” regarding texting and driving. The court also noted that the employer should have conducted periodic audits of its drivers’ status logs to prevent hours-of-service violations.”
What Employers Can Do To Minimize Potential Liability
1. Ensure that you have a written employment policy specifically prohibiting texting while driving on company time, in connection with work-related duties, or while using company equipment. The policy should discourage employees from texting a coworker when the coworker is likely driving.
2. If you employ teenagers, a flat ban on the use of electronic wireless communications devices while driving is advisable, as §§ 4511.204 and 4511.205 impose stiffer restrictions on teenagers than individuals over the age of 18. Specifically, teenagers are not permitted to drive while using any electronic wireless communications device in any manner.
3. Document your employees’ acknowledgment of your policies prohibiting texting while driving by having employees sign a written acknowledgement form or a copy of the policy.
4. Impose discipline upon employees you learn are texting while driving.
Josephine Noble is an associate in the Cleveland office of Ogletree Deakins.