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Employer Liability For Employee Acts: Frolic or Detour


As a general rule, employers are responsible for the acts of their employees.  These acts include accidents born out of negligence, acts conducted within the scope of the employment, and acts that are part of the job description.  With general rules there are exceptions.   Although employees are an extension of their employers, this is not always the case.  The time and the type of act can effectively release the employer from liability.  In these cases, the employee is totally liable for their actions.

Vicarious Liability

The rule that states that employers are generally liable for the actions or omissions of their employees is called vicarious liability.  It is also known as the theory of respondeat superior (Latin for “let the master answer).  Vicarious liability is the kind of liability that an employer has to bear for the actionable conduct of their subordinate.  The relationship between the two parties is the basis for which liability arises.  However, the action and the relationship between the two parties are not the only factors considered in this legal equation.   A primary consideration is when the action or omission occurred.  To pass liability to the employer, the employee must be performing duties for the employer at the time of the action.  If the action occurred outside of the scope of the employment or not at the direction or acquiescence of the employer, then the theory of respondeat superior does not apply.

Exception: Frolic or Detour?

If it is established that the employee is in fact working at the direction of the employer then the next question is whether the employee was acting within the scope of his or her employment.  Employees who are commuting to and from work are generally not acting within the scope of their employment.  There is some disagreement as to whether it is within scope where an employee is using a vehicle issued by the employer to commute to and from work.  After the employee has begun his or her shift, there are some actions that can take them outside of the scope of employment.  An employee who is on a “detour” can still act on behalf of the employee. For example, an employee who goes to the post office to pick up the company’s mail is still acting within the course of employment.  This is the case because the act of going to the post office is for the benefit of the employer.  In the alternative, an employee who has gone outside of the scope of employment cannot transfer liability on to his or her employer.  For example, an employee who sneaks away to watch a football game during working hours is on a “frolic” and will not transfer liability for any negligent acts performed during that period.  One of the main differences between the two theories is time.  A detour is short in time whereas a frolic is longer and takes the employee away from the normal tasks of his or her employment.

Your Florida Business Law Attorney

Attorney Brendan A. Sweeney is an experienced Florida business law attorney with years of experience advising on business tort issues.  He has extensive knowledge of liability laws governing employer-employee relationships.  Contact us now for a consultation.

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