Let’s say you were driving in traffic, minding the road, and following the rules, when you are rear-ended by a bread delivery van. Who is at fault? You would be wise in assuming that the van’s driver is at fault, but the driver’s employer, in this case a bakery, may also be at fault under the legal concept of “vicarious liability,” which stems from the ancient concept of “respondeat superior.” Essentially, it means that a superior is responsible for the acts of his or her subordinates. This concept usually comes into play when the actual violator has no money or insurance to pay for the injured person’s damages and so the injured person must look to someone else to cover the expenses. Most employers have deeper pockets than the employees. This applies most commonly in the context of employers and employees, but it also works with parents and children, or any person who has the “right, ability, and duty to control” the acts of another.
Let’s say that the bakery van driver that hit you was actually on his way to have lunch in a seedy, underground casino, instead of delivering bread at the time of the accident. Is the employer still liable for his actions? Well, maybe.
In order for an employer to be liable for the negligence of an employee, the employee must be acting within the scope of employment. If an employee diverts from the instructions and controls of the employer, the employee can be said to have gone on a “frolic,” which means his acts at that point are his own responsibility. However, if the employee’s diversion was minor, he is said to be on a mere “detour,” which means that his actions are still the responsibility of the employer. There has been much litigation on the differences between a frolic and a detour and there is no well-defined distinction, but rather a number of factors that judges take into consideration when determining whether an employee was on a frolic, thereby absolving the employer of liability.
- Frolics are usually taken for the exclusive benefit of the employee rather than for neutral reasons, or for the benefit of the employer. For example, it is to the employer’s benefit that its employees take lunch breaks, especially commercial drivers, who must be given break times under federal regulations.
- Frolics take longer. A typical detour is a cigarette break, which last but a few minutes, whereas a typical frolic is an employee ceasing work to watch a basketball game, which could last a few hours.
- Frolics usually take place outside of the employer’s geographical area. If the driver was on his regular route, or nearby, then he is probably merely on a detour. If he has driven several miles away from his normal route, he is likely on a frolic.
- Frolics violate operational freedom. Managers, executives and those with more operational freedom, are freer to divert from their typical activities due to the nature of their position, so it will be harder to show that a manager who took time away from the desk is on a frolic, as opposed to a low-level employee who has limited freedom to move about.
- Frolics are not foreseeable or normal. If a company’s drivers always drive illegally through a park because it is a more scenic route and the managers know this but do nothing about it, then it is foreseeable that a person may get hit in that park one day. It is hard to argue that the drivers are on a frolic if they do it every day.
Often employers attempt to avoid liability by using independent contractors instead of employees, but under the law, if the employer has the right to control the independent contractor and the independent contractor works full hours, then he or she is is basically seen as an employee. Also, if the victim is someone to whom the employer has a special duty, even if the employee is an independent contractor, the employer will be found liable. A good example of this is the duty of school authorities towards students, which remains even if an independent contractor substitute teacher is the one that injured the student.
You may think that as long as you are not an employer then you will not be found liable for the acts of others, but you would be wrong. If you lend your automobile to another person, and they get into an accident, you could be found liable. Also, if your minor children harm another person, you could be found liable through the concept of vicarious liability.