In the recently decided
Ayon v. Esquire Deposition Solutions, LLC (Cal. Ct. App., Sept. 21, 2018, No. G054578)(Ayon), a Court of Appeals held that an employer defendant, Esquire Deposition
Solutions (“Esquire”), a court reporting service, was not
vicariously liable for damages resulting from a car accident that occurred
after hours involving an Esquire employee who was speaking on her cell
phone with another Esquire employee about matters that were
In general, a company may be held liable for the wrongdoing of employees
committed within the scope of the employee’s employment. In the
legal arena, this type of vicarious liability is referred to as
respondeat superior. Even an employee’s willful, malicious and criminal actions
may fall within the scope of his or her employment for purposes of various
liability. California case law has held that even actions that do not
further the employer’s interests but arise out of the employment
may lead to vicarious liability.
Ayon, the plaintiff sought damages from Esquire on the basis of
respondeat superior. The scheduling manager for Esquire was driving and talking on her cell
phone to one of Esquire’s court reporters using a hands-free Blue-tooth
telephone system in the vehicle. During the course of their telephone
call, the scheduling manager struck a pedestrian. Both the scheduling
manager and court reporter testified that they were speaking about personal
topics and that no work-related topics were discussed during the call.
On appeal, the plaintiff argued there was sufficient evidence to raise
an issue of fact regarding the content of their call to allow her to proceed
with a case against Esquire under a theory of vicarious liability. The
Court of Appeals held there was substantial evidence that the two employees
of Esquire were not discussing work and therefore Plaintiff could not
pursue damages against Esquire.
While this is a correct outcome, the more troubling part of this opinion
is the indication by the Court that in other situations an employer may
be held liable when employees are engaged in telephone calls at the time
of incidents resulting in damages or injuries. The Court cited to a prior
decision in which it previously indicated that the link between an employer’s
vicarious liability for a work-related cell phone call falls on a continuum.
For example, if “an employee is on the phone for work at the moment
of the accident,” vicarious liability may attach.
This appears to be a no-win situation for employers. Employers want to
be able to reach employees on their cell phones when a work emergency
arises, but at the same time, do not want to be dragged into the potential
auto accident case due to a telephone call. While there is no bullet-proof
means of eliminating such liability, good policies and procedures pertaining
to driving and talking on the telephone can help and employers must follow
through with discipline for employees who fail to follow such procedures.
Moreover, if an employer provides cell phones to employees, the business
should consider safeguards that disable the receipt of texts while the
vehicle is in motion. Although these policies and procedures may come
as an annoyance to employees and employers alike, they could save a company
substantial costs involved in defending against a vicarious liability claim.