Why Employers Should Pay Attention to Phone Sex Case

Distracted driving is a huge issue in the United States, causing large numbers of crashes and deaths every year. But what happens when in the event that distracted driving results in a crash from an on-the-job employee? Can the employer be held responsible? What can employers do to protect themselves?

Distracted Driving

Thomas Earl Roberts was a commercial tractor-trailer driver. While driving one day in June of 2022, he got on a call with his “lady friend,” Inger Washington, and engaged in phone and video sex with her while he was driving. As a result of his distracted driving, Roberts swerved at the last minute to avoid a firetruck, causing him to hit another vehicle and kill its driver, Jocelyn Ortega. Roberts was eventually charged with and pled guilty to one count of criminal negligent homicide and two counts of aggravated assault against a public servant.

Following the crash, Ortega’s family also filed suit for punitive damages; however, they set their sights on someone other than Roberts. In June of 2024, the Ortegas filed a suit against Washington and her company, G.A. P. Trucking. The Ortegas’ attorneys claimed that because Washington, a commercial driver herself, engaged in phone sex despite knowing that Roberts was driving his 18-wheeler, she was a proximate cause of the accident.

Company Involvement?

Both the Harris County District Court and the Fourteenth Court of Appeals dismissed the suit, ruling that a person who is not physically present in a vehicle does not owe a duty to avoid distracting the driver. However, given that Roberts and Washington were both driving commercial vehicles at the time of the crash, this brings important attention to the possible liability employers can have during a distracted driving suit when an employer is on the job. On-the-job crashes are not uncommon, with 1,600 people being killed in 2016 as a result of them. Furthermore, many states have laws the make distracted driving illegal, which could pose huge risks for employers in the events of a case like Roberts’s.

Texas law says that if the employee was performing job-related duties that would further the employer’s interest when the crash occurred, the employer can also be held liable. This could include the kind of driving Roberts and Washington were performing when they decided to engage in phone sex with each other. Furthermore, Texas courts make a distinction between “detours” – small departures that are still work related – and “frolics” – abandoning work entirely for personal business. It is still unclear where engaging in phone or video sex or other forms of distracted driving would fall in this distinction. However, in light of Roberts’s crash and the behavior that caused it, employers need policies on distracted driving in order to protect themselves in the event that a similar incident occurs.

What can Employers do to Protect Themselves?

According to the Occupational Safety and Health Administration, employers have a responsibility and legal obligation to have a clear and unequivocal and enforced policy against texting while driving. These policies can help protect employers if employees are involved in a car crash on the job. Features of the best kinds of distracted driving policies would cover all employees, address both handheld and hands-free devices, cover company vehicles and cellphones, and cover all work-related communication. When implementing these policies, it is important for employers to use clear language and define the kinds of distracted driving, have documented training sessions, a requirement that employees read and sign the policy, and explanations of disciplinary action for violation of policy. The best ways for employers to enforce distracted driving policies would be through reports from others, parking lot observations, in-vehicle monitoring, and technologies that prohibit cellphone use while driving.

Bottom Line

Employers should implement policies against distracted driving. Creating, communicating, and promoting these policies can help employees be found not liable in the event of an on-the-job distracted driving crash, suit and keep the roads a safer place.

by Jacob M. Monty

Monty & Ramirez LLP