Cell Phone Defense

Cell phones are used everywhere.  Whether it is an old school flip phone, smartphone or tablet, Americans are devoted to, and engrossed with, their electronic gadgets. A piece of web art I ran across depicts a crowd of people walking in the street all staring down at their smartphones.  The caption under the piece reads something to the effect of “Don’t fear the zombie apocalypse – it’s already here”.

Cell phones are the ultimate distraction.  Because of this distraction, there are laws against texting and driving. The distraction may be caused by the utility of smartphones and endless application to aid everyday life. Smartphones could be used for grocery lists or reminders while shopping, especially when managing these tasks during the Holidays.  Consumers also use smartphones to research coupons or compare prices with competitors.  However, shopping with a smartphone may distract a patron from paying attention and looking where they are going.  Store patrons have a duty to watch where they are going and to avoid dangerous conditions.

When an accident happens at a retailer, most businesses have an incident report form in which the store employee records certain details of the accident.  For example: describe the dangerous condition; describe the clothing of the injured person; describe the alleged injuries.  An incident report could reveal that liability is certain, and the claim should be paid to avoid further liability and litigation defense cost. Alternatively, an incident report form could reveal that liability is questionable, and the claim should be defended, often because of mitigating circumstances.

Retailers and risk managers should consider amending their incident report forms to include a question asking whether or not the customer was using his or her smartphone at the time of the alleged accident.  If the customer was using a smartphone at the time of the accident, it would do savvy retailers well to record the fact and use it as an arrow in the defensive quiver. The use of a smartphone by a customer in a premises liability case may be just enough to establish comparative negligence and allow a jury to award a defense verdict or reduce the amount of damages a plaintiff may recover at trial.

If a retailer has an accident involving a cell phone, that retailer and its attorney should consider asking through discovery if the plaintiff was using a cell phone at the time of  the accident.  If the customer was using a phone, the attorney may be able to establish a comparative negligence defense or otherwise reduce the value of the case.

Distractions caused by cell phone use can also play on the other end of businesses.  Business owners and retailers should likewise make sure employees are not improperly using cell phones on the job.  This may ensure the employee is aware of his or her surroundings and may aid in avoiding an accident.

Both businesses and consumers can do their part this Holiday shopping season by ditching the cell phone and being more vigilant.