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BlackBerry Suits

September 18, 2006

By Walter Olson

"Tech addicts may sue," read the headline. Thus last month did an academic predict that obsessive devotees of handheld communications devices will at some point begin demanding damages from American employers. As one news account put it, "a corporation handing someone a BlackBerry on his first day of work could be seen as enabling, even accelerating, a serious addiction to technology."

It might occur to you that this story is a trifle premature. No one has in fact filed such a lawsuit. Nor have Gayle Porter, associate professor of management at Rutgers University in New Jersey, and her two co-authors actually published their study on tech addiction yet, though the press release from Rutgers says it will be coming along soon.

Still, it made a perfect hey-Martha-look-at-this story, arriving amid the August silly season. As it happens, media people love to confess to their own BlackBerry addictions, which subtly reflect their own importance (people need to reach me day and night!) and in any case make a more agreeable topic of conversation than their gin, shopping or sex addictions.

And we also know, of course, that American courts let people sue over lots of different things. On the addiction front, gamblers have blamed casinos for enabling their high-rolling habits. Nutrition zealots file actions claiming that soft-drink makers use caffeine to enslave helpless youth, while a Florida lawyer regularly sues makers of computer and video entertainments after 10-hour-a-day gamers commit suicide or go on shooting sprees.

All that having been said, it's very unlikely that employers need worry about BlackBerry-addiction suits. Despite rumors to the contrary, American courts have not in fact been much inclined to let sunken-eyed Jane blame her addictions on deep-pocketed James. Compulsive gamblers' suits have mostly flopped so far—as have those alleging videogame addiction—while the very modest success enjoyed by plaintiffs in fast-food lawsuits has come on other legal theories, such as ingredient mis-labelling. A Wisconsin man won brief national derision by blaming his addiction to television-watching on his local cable service, but soon decided not to pursue the matter.

There are other big problems with the liability theory as well. When employees overuse the devices they're usually spending a lot of time on personal and not just company business. Asking for the employer to be made liable because it introduced the worker to the device proves too much: are bosses who introduce their workforce to telephones and the internet to be sued over off-work abuse of those too?

To be sure, there are ways employers can run into legal trouble by way of their staff's BlackBerry use. It's just that those ways have nothing to do with the notion of addiction. Obliging an employee to stay connected after hours can sometimes run afoul of wage and hour laws, though many professional, creative and managerial types, prime users of the devices, aren't covered by that set of laws. Should an employee on the road have a crash while fiddling with the tiny keyboard, a clever lawyer might name the employer as defendant. But again, no addiction angle there.

If our plaintiff's lawyers did take the addiction theory seriously, the employer would probably not be the one they'd be looking to blame. American law directs most injury claims against employers into workers' compensation funds that provide wage replacement but not big jackpots. A huge sector of our product liability law is accordingly devoted to finding anyone but the employer to sue over workplace ailments—most often the manufacturer who supplied some machine or raw material used on the job.

Enough ill-conceived lawsuits already go forward in the American courts that there's no need to conjure up the purely imaginary kind.

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