Acting During a Frolic or Detour

If the employee is not acting on behalf of the employer, the court may deem that the employee took the action “during a frolic.” For some, that term may evoke a scene of prancing in slow motion in a pastoral field. However, a frolic is a legal term that may allow an employer to escape vicarious liability.

Take the example above of being involved in an accident with a delivery truck. If that truck was on its way to make a delivery, the employer is clearly liable under respondeat superior. If, however, the delivery driver was taking the vehicle to go on a weekend fishing trip, the employer may not be responsible. The court will likely see the fishing trip as a frolic and may completely absolve the employer of responsibility.

Note: The employer is also likely not liable if the employer was intoxicated at the time of the incident. If an employee took her company car out to the bar and got into an accident on the way home, the employer is likely not responsible for any damages the accident caused.

Trials largely boil down to the issue of whether an employee was acting within the scope of his employment or during a frolic.

Taking a Detour

While employees who were acting during a frolic are likely the ones solely responsible for their actions, employers are likely liable for actions employees commit while taking a detour. For example, if an employee rear ends another driver while driving to get lunch, the employer may be liable for any damages.

The Independent Contractor Variable: Control

So we know that employers are most likely liable for employees acting within the scope of their employment. But what about independent contractors? Courts have ruled that independent contractors are solely responsible for their actions and therefore employers who hire those contractors are not vicariously liable.

Who is an independent contractor?

Whether a person is an employee or an independent depends on how much control the master has over the servant. If an employer does not have control over the servant’s hours, methods, or materials, the court will likely determine that the individual is an independent contractor and not an employee.

The amount of control is more important than what the parties call each other. Even if a person is an independent contractor, vicarious liability might still be applicable if the employer asserts too much control. Also, look for whether the employer pays the contractor per job or if the contractor receives a paid salary. The existence of salary is a factor that weighs in the favor of finding employee status.

To illustrate this point, think of the following example. Assume you are a business owner and you hire a person to clean the windows of your 10-story building. You pay this person one fee to get the whole job done. The window washer brings all his tools and supplies. While cleaning the windows, he drops a bucket and injures a pedestrian on the street. In this example, you, the employer would likely not be responsible for the accident unless there is a specific law stating otherwise.

Now imagine that you hire the window washer but this time you pay him every week. You give him all the equipment he needs and you tell him that you want him to start at the top and work his way down. Again, the careless window washer drops a bucket that injures a pedestrian. Even if you had a contract that identified the window washer as an independent contractor, chances are that you will be responsible under the doctrine of respondeat superior.

How can I sue an employer under the concept of vicarious liability?

Essentially, if you are able to establish agency (the relationship between the employer and employee) and that the employee caused your injuries acting within the scope of his employment, you may be eligible to sue the employer for his employee’s actions.

As you can see, vicarious liability can be complicated and difficult to prove. Injured victims should speak with an Atlanta personal injury lawyer at the Law Office of Jason R. Schultz, P.C. to discuss whether you may be able to hold additional parties responsible for an accident causing injuries through respondeat superior.

Contact Jason today at 404-474-0804.

Jason R. Schultz
Helping Georgia area residents with car accident, medical malpractice, and personal injury claims since 1991.