National Law Review Guest Blogger David Carr discusses the every day issue of communicating with employees while they’re driving with a colorful fact pattern. 
A recent court decision involving particularly bizarre circumstances may signal a warning of importance to employers about not so bizarre business practices. Prudent employers will take heed.
At first blush, the case of Buchanan v. Vowell appears to have no bearing on any significant employment law issue. Jerry Buchanan, the plaintiff, brought suit as a pedestrian who was hit by a car operated by the defendant, Candice Vowell. However, Buchanan also sued Candice Vowell’s mother, Shannon Vowell. (Other facts involve the Vowells’ consumption of alcohol and Shannon Vowell’s employment with Brad’s Gold Club.) The key facts generated the question of whether Shannon Vowell possessed liability for the unfortunate accident that occurred when Candice Vowell struck Buchanan with her vehicle after leaving Brad’s Gold Club. Brad’s Gold Club also found itself a defendant in the resulting lawsuit. However, the importance of this case arises not from the potential liability of Brad’s Gold Club. Presumably, most employers know about the dangers of serving alcohol to an employee and the attendant liability that arises if an intoxicated employee leaves an employer party or event and injures someone. If this proposition constituted all the case stood for, no novel issue exists.
Instead, what makes this case important and novel is the question of the liability of Shannon Vowell. The issue in question revolves around whether Shannon Vowell possessed liability for the injuries suffered by virtue of Candice Vowell’s striking Buchanan with her car. How could liability exist?
It turns out Shannon and Candice Vowell consumed alcohol together at Brad’s Gold Club and Shannon Vowell determined that, upon leaving, rather than call a cab or have Candice Vowell ride as a passenger in Shannon Vowell’s car, the two would traverse the streets of Indianapolis in two vehicles with Candice Vowell leading and Shannon Vowell following. At the time of the accident, Shannon Vowell was following Candice Vowell in a separate vehicle, and was engaging Candice Vowell in a conversation on a cell phone. Under these facts, could Shannon Vowell be found liable?
Buchanan alleged that, at the time of the accident, Shannon Vowell knew Candice Vowell was operating her vehicle while intoxicated and knew, or should have known, that talking on her cell phone would further impair or distract Candice Vowell, making her even more dangerous to other persons using the streets. Buchanan further alleged that Shannon Vowell “negligently made the affirmative, conscious effort to call Candice Vowell, distracting her from maintaining a proper lookout.”
In determining Shannon Vowell’s liability, the court looked at the Restatement (Second) of Torts § 324(a) which provides “one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third party or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise a reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm or (b) he has undertaken a duty to perform a duty owed by the other to the third person or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
The trial court chose to dismiss Shannon Vowell as a defendant. The Court of Appeals reversed and found that Shannon Vowell had acted in a negligent fashion by communicating with Candice Vowell on her cell phone when she knew that Candice Vowell was driving a car. The Court concluded that Shannon Vowell, as an individual, may have breached her duty of reasonable care “by calling and distracting a person she knew was operating a vehicle . . . .”
Perhaps you now see the potential significance of this case. One suspects that every day supervisors call, e-mail or even text “mobile” employees in the act of driving. It certainly appears an avenue now opens for employers to be liable for any action that occurs while the employee attempts to drive and text or talk via cell phone with the employer. While such a ruling would require an extension of the precise holding of Buchanan v. Vowell due to the added element of consumption of alcohol, it does not appear to be a difficult stretch. Wise employers will consider this case and set specific standards and protocols for when employees should and should not use their cell phones and text in the course of operating a company vehicle or carrying out company duties.
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About the Author:
David J. Carr is a partner in the Labor and Employment Law practice group of Ice Miller LLP, focusing his practice in the areas of litigation of employment contracts involving trade secrets, confidential information and covenants against competition, complex wage and hour law issues, employment discrimination, and personnel policies. Mr. Carr is a veteran labor negotiator and has handled numerous labor arbitrations, union avoidance and other collective bargaining matters in both the public and private sectors. He also has substantial experience representing employers in wrongful discharge lawsuits and employment discrimination investigations, including sexual harassment situations.
