Frolic and detour in the law of tort

Tort

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

s occur when an employee (or agent

Law of agency

The law of agency is an area of commercial law dealing with a contractual or quasi-contractual, or non-contractual set of relationships when a person, called the agent, is authorized to act on behalf of another to create a legal relationship with a third party...

) makes a physical departure from the service of his employer (or principal). A detour occurs when an employee or agent makes a minor departure from his employer’s charge, whereas a frolic constitutes a major departure wherein the employee is acting on his own and for his own benefit, rather than a minor sidetrack in the course of obeying an order from the employer. The employer will be relieved of vicarious liability

Vicarious liability

Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...

, which is usually assessed through the doctrine of respondeat superior

Respondeat superior

Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...

for torts committed by the employee, only if the employee has deemed to engaged in a frolic. Similarly, in the law of workers' compensation

Workers' compensation

Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...

, an employer is not liable for injuries incurred by an employee during a frolic; whereas the employer can still face liability for the results of a detour.

Underlying rule of liability

An employer is vicariously liable for the unintentional torts of his employees. Similarly, a principal is liable for unintentional torts committed by an agent. This rule extends to partners in a partnership

Partnership

A partnership is an arrangement where parties agree to cooperate to advance their mutual interests.Since humans are social beings, partnerships between individuals, businesses, interest-based organizations, schools, governments, and varied combinations thereof, have always been and remain commonplace...

, who act as agents for one another, making each partner liable for unintentional torts committed by other partners while working for the benefit of the business. A frolic presents a situation that absolves employers, principals, and partners of this liability. A detour, comparatively, still allows a judge or jury to assess liability upon the employer, as the agent’s/employee’s actions will not be considered so far beyond the scope of employment as to absolve the employer/principal from liability without a factual assessment.

What constitutes a frolic vs. a detour

To constitute a frolic or detour, the activity must be unrelated to the employer's business. However, in order for liability to be absolved, the employee must be engaged in a frolic, and not simply a detour (which may or may not result in absolution depending on additional circumstances). For example, when a delivery truck driver takes a longer route to the location he is supposed to deliver packages to because he wants to, say, see a new controversial billboard put up in town that has caused some public debate, he has merely taken a detour from his primary role as an employee/agent of the delivery company. Were he to negligently hit a pedestrian, his employer could likely still face the prospect of vicarious liability.

Conversely, if the same delivery truck driver decided to skip work for a few hours to catch a baseball game and, en route to the game he struck a pedestrian, his employer/principal would likely avoid liability, as the driver/employee/agent’s actions have constituted a frolic, and his negligent actions occurred in furtherance of an act wholly separate from his employ, even though technically he is being paid during that time by his employer/principal.

Factors relevant to determining whether an individual was engaged in a frolic or detour in a specific circumstance include, but are not limited to:

1. Time (Consider the amount time taken for the departure and also if the departure is within the time frame during which the employee is employed.)
2. Place (Was the place where the incident occurred within the scope of the employee's employment?)
3. Authorization (Was the employee a manager and thus have more latitude in their operation? Or was the employee occupying an entry level position?)
4. Forseeability of the employee's departure.
5. Normalcy of the employee's departure.
6. Purpose (Was the departure personally motivated or for the benefit of the employer?)
7. Special obligation (Was a special duty placed upon the employee? e.g. common carrier or innkeeper)
8. Common sense
9. Scope of employment

Employer negligence compared

Determining whether an employee or agent was on a frolic or a detour will not relieve the employer/principal of their own liability for negligent entrustment. Thus, where an employer negligently permits an employee who is known to be a reckless driver, or should have been known with a basic amount of investigation that is reasonable for most employers to perform, to use a company vehicle the employer will be liable to those injured when the employee causes a car accident, even if the employee was on a frolic at the time.