By: Laura Parker
McLean, VA.- As a 29 year old technology lawyer on the rise, Jane Wagner drove a silver Mercedes and billed clients for the time she talked to them from her car. She routinely made as many as 40 cell phone calls a day.
On March 28, 2000, during a call she made at 10:36 p.m., she hit and killed a 15 year old girl, Naeun Yoon, in a busy highway in Fairfax County, VA., just outside Washington.
Now Yoon’s parents have filed a civil suit against Wagner, who served a one-year jail term on work release after pleading guilty to leaving the scene of an accident. But in seeking $30 million in damages, Yoon’s father, Young Ki Yoon, also is suing Wagner’s former employer, the law firm of Cooley, Godward, based in San Francisco.
At the heart of the claim against the law firm are the cell phone calls that Wagner made when she was working. The suit alleges that the firm is partly liable for the accident because Wagner’s job involved doing business-in lawyers’ parlance- amassing “billable hours”- by cell phone. Such calls, the suit says, were done “with the expectation and acquiescence of Cooley Godward and served as a direct benefit…the law firm.”
The case is part of a growing number of lawsuits against businesses whose employees are involved in car accidents while talking on cell phones. The Wagner and Cooley Godward trial could have costly implications for businesses across the nation whose productivity is tied to the hours their employees spend on mobile phones, which have expanded the boundaries of the modern office.
“We are going to see more of these suits and see some significant verdicts in the next few years, “ says Paul Martinek, a lawyer and publisher of Lawyers Weekly USA, a legal journal that tracks litigation trends. “When you have somebody using the phone for work purposes, the deeper pock is always the one (for victims) to go after. If you can prove they’re using their phone for work purposes, the employer is vulnerable.”
Martinek adds that such lawsuits can be especially potent because jurors are familiar with the risks presented by inattentive cell phone users on the road.
Such lawsuits against businesses began popping up in U.S. courts only recently, bu several companies already have taken hits.
‘Smith Barney, an investment baking firm, paid $500,000 to settle a suit brought by the family of a motorcyclist killed in an accident involving one of the firm’s brokers who had been talking on a cell phone at the time. ‘The State of Hawaii agreed to pay $1.5 million to the family of a New Jersey man who was walking across a highway when he was struck by a car driven by a public school teacher who was talking on a cell phone.
‘An Arkansas lumber wholesaler, Dyke Industries, agreed to pay $16.2 million to a 78 year old woman who was severely disabled in a car accident involving one of its salesmen who was talking on his cell phone.
More than 128 million people use cell phones in the USA. A federal survey of motorists last year found that 54% have a cell phone with them when they drive. Of those, 73% said they talk while driving.
Michael Haggard, a lawyer in Miami who represented the accident victim who successfully sued Dyke Industries, seemed to symbolize the popularity of cell phones among drivers when he was interviewed by cell phone for his story-while driving in his car. Haggard said that he was wearing an earpiece attachment to his phone, which he said left both of his hands free to hold the steering wheel.
The cell phone has become an easy target for personal injury lawyers because phone records documenting cell phone airtime can provide proof that a driver was on the phone at the time of the accident. Once that is established, the lawyers can set out to prove that the driver might have been distracted and therefore at fault.
In the Dyke Industries case, Lazaro Leiva, salesman for the lumber company, was talking on his cell phone while driving his Ford Explorer to a sales appointment. At an intersection in Hialeah, FL., he collided with a Buick that was completing a left turn. Alicia Bustos, 78, was injured so severly that she later required a ventilator to breathe. She has since died.
The jury in the case warded $21 million to Bustos. The case was settled for $16.2 million- the combined limits of Dyke’s Industries and Lazaro’s insurance policies.
Still, the issue of business’ liability on employee’s use of cell phones is not clear-cut. In a Minnesota case, for example, a jury found that a hospital was not liable in an automobile accident caused by a nurse who reached for a cell phone to take a call from her daughter.
Likewise, in the suit against Wagner and her law firm, it might be easy for the Yoon family’s attorneys to show that Wagner’s firm should share responsibility for the accident. Already, the issue of whether Cooley Godward had a policy about cell phone use has been dropped from the case in a pretrial ruling.
But whether Wagner was working when she was on the phone and hit Yoon remains a key issue. Cooley Godward contends that she was not. The accident occurred after business hours, the law firm says. The person with whom Wagner was speaking on the cell phone, a former lawyer at the firm, said in a deposition that the two were not discussing business for the firm.
“She was off duty,” says John McGavin, a lawyer defending Cooley Godward in the suit.
Attorneys for the victim argue that Wagner was on a business call when Yoon was struck.
Wagner did not stop after the accident, even though her Mercedes had struck Yoon with enough force to break a headlight and shatter the corner of its windshield. Wagnr claimed at the time that she thought she had hit a deer.
After pleading guilty to leaving the scene of an accident, Wagner served 12 months of a five-year sentence in a work release program at the Fairfax County jail. She lost her $165,000 a year job and her law license. She then moved to Illinois where she grew up.
The night Yoon was killed; she was riding home with her mother and brother in the family’s van. The siblings began arguing. When their mother pulled over to try to make peace both teenagers jumped out the van and began walking in opposite directions on the side of the highway. A few moments later, Yoon was struck by Wagner’s car and propelled over a guardrail.
At her sentencing, Wagner provided the court with a series of documents to try to explain how she could have hit a pedestrian without knowing it. They included documents that became the family’s attorneys in the civil lawsuit.
To try explaining why she was distracted as she drove, Wagner provided her cell phone records as well as the 1997 New England Journal of Medicine study about cell phone use in cars.
The study, still one of the most comprehensive examinations of cell phone use, found that the risk of accidents is four times higher when a motorist is using a cell phone.