Court Expresses Increased Interest in Cellphone Use and Accident Liability

Case underscores the need for cellphone usage policies for employees and volunteers who drive for church-sponsored events.

Key point. The use of cellphones by church employees and volunteers while driving vehicles on church business may expose the church to substantial liability in the event of an accident caused by distracted driving.

A Florida court ruled that the cellphone records of a driver who was killed when her car struck a truck could be examined by the trucking company's attorney to determine if the decedent was using her cellphone at the time of the accident.


A truck operated by a trucking company collided with a vehicle driven by a woman, who was killed in the accident. Six months later, the decedent's estate filed a wrongful death action, but the trucking company denied liability. It asserted that the decedent's own negligence in operating a cellphone at the time of the accident was the sole cause of the accident, and therefore the trucking company could not be found liable for her death.

On several occasions the trucking company requested data from the decedent's cellphone, which had been kept unused since the accident. And while the trucking company received some calling and texting records from the decedent's wireless provider, other cellphone data was not disclosed, such as use and location information, internet website access history, email messages, and social and photo media posted and reviewed on the day of the accident.

Appeals court permits “limited and strictly controlled inspections” of information

The trucking company asked the trial court for an order permitting an expert to inspect the cellphone's data on the day of the accident. The decedent's estate objected to the cellphone inspection citing the decedent's privacy rights under the state Constitution. After a hearing, the trial court granted the trucking company's request.

The court's order allowing the inspection recognized both the trucking company's discovery rights and the privacy interest asserted by the decedent's estate. It stressed the relevance of the requested information, citing cellphone records showing that the decedent had been texting in the minutes preceding the accident; testimony from two witnesses indicating that the decedent may have been utilizing her cellphone at the time of the accident; and testimony from the responding troopers supporting the assertion that the decedent was using her cellphone when the accident occurred.

The order also recognized the decedent's privacy interests and set strict parameters for the expert's confidential inspection. It provided that the expert could examine the cellphone in the presence of the estate's counsel at an agreed date, place, and time. The order specified certain conditions to be followed by the expert, including the following:

(1) Install write-protect software to ensure no alteration of the phone's hard drive would be made during the inspection;

(2) Download a copy of the cellphone's hard drive, making a master copy, a review copy, and a copy for the decedent's counsel;

(3) Return the cellphone to the decedent's counsel immediately after copying the hard drive;

(4) Review only the data on the hard drive for a nine-hour period on the day of the accident, with the inspection to include call records, text messages, web searches, emails sent and received, uploads, downloads, data changes, and GPS data.

The decedent's estate immediately appealed this order, as overbroad, and a state appeals court affirmed the trial court's order compelling limited disclosure. It rejected the estate's contention that by allowing the inspection of "all data" on the decedent's cellphone the inspection amounted to "an improper fishing expedition in a digital ocean."

The appeals court disagreed, noting that "privacy rights do not completely foreclose the prospect of discovery of data stored on electronic devices. Rather, limited and strictly controlled inspections of information stored on electronic devices may be permitted."

The court noted that the trial court "closely considered how to balance the trucking company's discovery rights and the decedent's privacy rights. The order highlighted the relevance of the cellphone's data to the trucking company's defense and it set forth strict procedures controlling how the inspection process would proceed." The court continued:

The trial court didn't allow the inspection simply because the trucking company made assertions that decedent was on her cell phone, or because the decedent happened to possess a cell phone in her car. This case does not involve an unanchored fishing expedition as the decedent's counsel alleges. Rather, the trucking company supported its motion to inspect the cell phone with specific evidence. It cited cell phone records showing that the decedent was texting just before the accident; two witnesses indicated that the decedent may have used her cell phone at the time of the accident; and troopers responding to the accident lent support to the conclusion that the decedent was using her cell phone when the accident occurred. Additionally, no one has disputed that the decedent's smartphone may contain very relevant information. As the trucking company alleged, "With GPS enabled phones, such as [the decedent's] iPhone, there is a very high probability that if the GPS feature were enabled, we can look at the data and figure out conclusively what happened in the moments leading up to the accident, i.e. whether she stopped at the stop sign or not and whether she was texting, Facebooking, Tweeting, or nothing at the time of the accident."

The court concluded that "it has long been true that the more relevant and necessary the desired information is to a resolution of the case, the greater the state's interest in allowing discovery of the information."

The court conceded that the countervailing privacy interest involved in this case (the discovery of data on a cellphone) is also very important. But it concluded:

It would appear that the only way to discover whether the decedent used her cell phone's integrated software at the time of the accident, or drafted a text, dialed a number, searched for contact information, reviewed an old message, or used any other of the smartphone's many features, is by broadly inspecting data associated with all of the cellphone's applications. Or, at least, if an effective and superior privacy-respecting plan for segregating inspection-permissible from impermissible data exists, it hasn't been presented to the court. And so, we cannot conclude that the trial court violated the essential requirements of law by permitting a thorough inspection of the cellphone for the nine-hour period on the day of the accident.

What this means for churches

This case represents a trend in recent years of courts permitting access to cellphone records to determine if either or both parties to a collision was operating a cellphone at the moment of, or shortly before, the collision.

As this case demonstrates, the evidence can have a dramatic impact in determining fault. This underscores the need for churches to adopt cellphone usage policies for employees and volunteers who drive vehicles (their own, or the church's) in the course of performing their duties. Such a policy should include some or all of the following elements: (1) Comply fully with state laws that regulate and restrict the use of cellular devices while driving. These laws often change, so be sure you are familiar with current legal restrictions. (2) Ban drivers from using a cellphone for texting, performing internet searches, making phone calls, or any other use of a smartphone. (3) Benchmark, meaning obtain the cellphone policies of your public school district, and local units of national charities, to guide you in formulating your own policy. (4) Consult with legal counsel in the preparation or review of the policy.

Church leaders would never allow employees or volunteers to drive while intoxicated. Distracted driving due to smartphones must be viewed in the same light, and must bear the same consequences in terms of discipline or termination of employment. Antico v. Sindt Trucking, Inc., 148 So.3d 163 (Fla. App. 2015).

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