EMPLOYERS restricting use of cell phones in cars as more states consider bans

Monday, August 27th 2001, 12:00 am

By: News On 6

NEW YORK (AP) _ Attorney Jane Wagner was so busy talking on her cell phone while driving she thought the teen-ager she struck was a deer. It wasn't until the next morning, when she heard that a hit-and-run driver had killed a 15-year-old girl, that Wagner said she realized what she had done.

Whether Wagner was making work-related calls when the accident occurred is a matter for the courts to decide, but a $30 million lawsuit against her firm is causing some employers to restrict mobile-phone use on the road, ahead of legislation by most states.

``The recent lawsuit focused our attention, but it's a common sense safety concern,'' said David Fuss, a partner at Wilkes Artis, one of several Washington, D.C.-based law firms that have curbs on cell phone use.

``Our policy is that personnel are not to conduct business while using cell phones, unless they pull over and stop or use a handsfree device,'' said Fuss.

Even General Motors Corp., whose OnStar subsidiary sells embedded or handsfree mobile phones for cars _ proclaimed safe by a company-sponsored study last week _ is revising guidelines for its workers.

``Stay tuned. We're getting there,'' spokeswoman Carolyn Markey said. ``We're working on a new policy regarding all distractions and it should be available soon.''

In June, New York became the first state to ban the use of hand-held cell phones. Curbs are pending in 42 other states. Japan, Israel, Portugal and Singapore are among 23 countries with restrictions.

Chemical companies have long restricted what drivers can do behind the wheel.

``Safely operating a motor vehicle requires a driver's total attention,'' reads DuPont Co.'s personnel policy. Praxair, a $5-billion industrial gas maker, banned cell phone use in 1999.

Limiting liability is clearly behind the latest spate of policies, said Tom Harrison, publisher of Lawyers Weekly USA, a newspaper and Web site that tracks litigation trends.

``Companies get a lot of benefit from employees' productivity while talking on the phone from their car,'' he said. ``It's still a question if they should be responsible for any accidents that result.''

Wagner turned herself into police on March 9, 2000, the morning after killing Naeun Yoon. She pleaded guilty to felony hit-and-run and is serving a year sentence at a work-release program.

Yoon's father filed a wrongful death suit against Wagner and her firm, Cooley Godward. The details are under dispute, but the complaint states that Wagner was returning home from a meeting in Tysons Corner, Va., and made a series of work-related calls around the time of the accident.

Because of the litigation, the firm will not comment, except to say that the teen's death was a tragedy.

In another case, Salomon Smith Barney settled a 1997 suit for $500,000 when one of its brokers ran a red light and killed a motorcyclist, reportedly while trying to retrieve a dropped cell phone. The firm admitted no guilt.

By law, companies bear ``vicarious responsibility'' if their employee's negligence causes an accident. But legal experts say specialized policies can't completely shield employers.

``There's nothing special about the cell phone,'' says Kenneth Abraham, a professor of tort and insurance law at the University of Virginia.

Companies can still be responsible if employees are only slightly deviating from their assigned tasks when the accident occurs, but not when staff do something they really weren't supposed to do, he said.

Still, Abraham thinks the new guidelines make sense.

``If they have a policy, their employees are less likely to have accidents,'' said Abraham.