LAWS ABOUT THE USE OF CELL PHONES, TEXTING and BROKER LIABILITY.
BE RISK AVERSE. Folks who know me know that I am very risk averse. That said, we can't live in a cocoon and we can't eliminate all risk to ourselves or our businesses. We can, however, take affirmative steps to limit liability.
This post inspired by June Lewis who wrote a thoughtful article today on this timely subject. 
THE MATTER OF "DISTRACTED RESTRICTIONS" WHEN DRIVING. This subject came to my attention several years ago. Granted, it was prior to the introduction of texting. However, I believe that the risk to real estate brokers when an agent is texting is the same as an agent using a cell phone while on real estate business.
- Cooley Godward, a Virginia-based law firm, was slapped with a $30 million wrongful death suit where an employee of theirs was conducting business on her cell phone when she struck and killed a fifteen-year-old boy with her car.
A good article about this matter can be found at Employers Guide to Cell Phone.
When I read about the Gooley Goodward case in Virginia, I contacted my attorney and, after consultation, we decided that, in order to limit broker liability, which would be similar to the law firm liability in the Cooley case, Homefinders.com would implement a BROKER POLICY to the effect that Independent Contractors who were agents of the brokerage would acknowledge receipt of a NOTICE that it was broker policy that agents would not use cell phones while driving.
Agents signed the acknowledgment letter and it was kept in their employee file.
I could not control agents' use of their cell phone while driving. However, implementation of the broker policy served several purposes.
- It made agents more aware of the dangers of talking on the cell phone while driving.
- It gave some protection to my real estate brokerage and myself as the broker.
WE ARE ALL AN "ACCIDENT ABOUT TO HAPPEN". To this day, I do not talk on my cell while driving. Calls go to my 800# and I check messages regularly. If I make an outgoing call on my cell while in my vehicle, I first pull over to a safe place. That said, I understand well the pressure for agents to be connected while on the road. Agents on my network are usually anxious to answer a call from me because they know it's important. I'm usually calling with a buyer referral. However, I still would not encourage them to answer a call while driving. With a "HANDS FREE" device, voice activated agents may have a margin of safety. However, law enforcement folks claim that simple talking is distracting. I don't have an answer for that, or anything else for that matter. I would just like to raise the awareness of the subject for my ActiveRain friends. When an agent doesn't answer, I assume that they are driving and wait a reasonable time before calling another agent to make the referral.
"Hey, let's be careful out there." Sergeant Phil Esterhaus, Hill Street Blues.
Courtesy, Lenn Harley, Broker, Homefinders.com, 800-711-7988.
Alan Bruzee, Associate Broker, MD, DC, VA
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Texting or talking while driving is truly risky business. But it is scary to know that a broker is liable in a wrongful death suit for a independent contractor. If the attorneys are able to do that then surely the know texting policy would stop them from suing and winning anyway.