• Key point 10-02. The doctrine of respondeat superior imposes vicarious liability on employers for the negligent acts of their employees committed within the scope of their employment.

* A California court ruled that an employer’s cell phone records can be used to show whether or not an employee was talking on a cell phone at the time of an accident. A 7-year-old boy was killed when he was struck by a truck. The parents sued the company that owned the truck, claiming that the driver was distracted while talking on a cell phone. They argued that an attentive driver would have had sufficient time to stop before hitting the child. At the trial, a witness testified she saw the driver using a cell phone. The driver insisted that he was not. The custodian of the trucking company’s cell phone records testified that she was responsible for the cell phone accounts of the company’s employees, including the driver involved in the accident. The driver’s cell phone bill did not contain an entry showing a call at the time of the accident. At the conclusion of the trial the jury found the trucking company and driver not negligent on the basis of the cell phone records.

Application. It is increasingly common for employers to be sued as a result of auto accidents caused by the inattention of employees driving on company business while talking on a cell phone. Church leaders should expect a subpoena of all cell phone records if anyone is killed or injured in an accident caused by the negligent driving of a church employee. The records will confirm whether or not the driver was talking on a cell phone at the time of the accident. If, as in this case, the records reveal that the driver was not talking on a cell phone at the time of the accident, they can be used to refute an allegation of negligence. On the other hand, if the records show that the driver was on a cell phone call at the time of the accident, then they may be used to assign liability to the church. This is all the more reason for churches to adopt a cell phone policy prohibiting the use of cell phones by any church volunteer or employee while driving a vehicle on church business. Dionicio v. Homes, 2002 WL 1614113 (Cal. App. 2002).

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