In the recently decided Ayon v. Esquire Deposition Solutions, LLC (Cal. Ct. App., Sept. 21, 2018, No. G054578)(Ayon), a Court of Appeals held that an employer defendant, Esquire Deposition Solutions (“Esquire”), a court reporting service, was not vicariously liable for damages resulting from a car accident that occurred after hours involving an Esquire employee who was speaking on her cell phone with another Esquire employee about matters that were not work-related.
In general, a company may be held liable for the wrongdoing of employees committed within the scope of the employee’s employment. In the legal arena, this type of vicarious liability is referred to as respondeat superior. Even an employee’s willful, malicious and criminal actions may fall within the scope of his or her employment for purposes of various liability. California case law has held that even actions that do not further the employer’s interests but arise out of the employment may lead to vicarious liability.
In Ayon, the plaintiff sought damages from Esquire on the basis of respondeat superior. The scheduling manager for Esquire was driving and talking on her cell phone to one of Esquire’s court reporters using a hands-free Blue-tooth telephone system in the vehicle. During the course of their telephone call, the scheduling manager struck a pedestrian. Both the scheduling manager and court reporter testified that they were speaking about personal topics and that no work-related topics were discussed during the call. On appeal, the plaintiff argued there was sufficient evidence to raise an issue of fact regarding the content of their call to allow her to proceed with a case against Esquire under a theory of vicarious liability. The Court of Appeals held there was substantial evidence that the two employees of Esquire were not discussing work and therefore Plaintiff could not pursue damages against Esquire.
While this is a correct outcome, the more troubling part of this opinion is the indication by the Court that in other situations an employer may be held liable when employees are engaged in telephone calls at the time of incidents resulting in damages or injuries. The Court cited to a prior decision in which it previously indicated that the link between an employer’s vicarious liability for a work-related cell phone call falls on a continuum. For example, if “an employee is on the phone for work at the moment of the accident,” vicarious liability may attach.
This appears to be a no-win situation for employers. Employers want to be able to reach employees on their cell phones when a work emergency arises, but at the same time, do not want to be dragged into the potential auto accident case due to a telephone call. While there is no bullet-proof means of eliminating such liability, good policies and procedures pertaining to driving and talking on the telephone can help and employers must follow through with discipline for employees who fail to follow such procedures. Moreover, if an employer provides cell phones to employees, the business should consider safeguards that disable the receipt of texts while the vehicle is in motion. Although these policies and procedures may come as an annoyance to employees and employers alike, they could save a company substantial costs involved in defending against a vicarious liability claim.