Frolic and Detour Laws

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 What Is Vicarious Liability?

Vicarious liability, or imputed liability, makes an individual liable for the actions of another individual. Vicarious liability is the procedure of holding a person accountable for the actions of another individual. Often, the concept of vicarious liability applies to employer liability for the actions of their workers.

This kind of liability is usually applied to employee-employer relationships where an employer is liable for its worker’s actions. The actions commonly involve causing damage or injury to another individual. In some cases, an employer may not be liable for its worker’s actions when sued for a personal injury claim.

How Can an Injured Person Prove Vicarious Liability of an Employer?

Injured people that wish to hold employers responsible for the actions of their workers have to establish three elements:

  • The employee agreement required the worker to work under the direction and control of the employer.
  • The employer had the inherent authority to control the worker.
  • The employee’s actions are within the scope of employment.

The burden of proof rests on the individual wanting to hold an employer liable. Accordingly, obtaining accurate records about the scope of employment is essential.

What Is a Personal Injury Claim?

In a claim for personal injury, a plaintiff claims that they have sustained an injury, either mental, physical, or both, due to the defendant’s act or failure to act. A court may award the plaintiff money damages for personal injury.

In some circumstances, the events which form the basis of a personal injury claim may also include the basis of criminal charges. For instance, a defendant may face a civil lawsuit for assault and a criminal assault and battery charge.

What Kind of Injury Does a Personal Injury Claim Involve?

A personal injury damages a plaintiff’s emotional health, physical health, or both. Mental health injuries include emotional pain and anguish sustained by accident.

Physical injuries include injuries to organs, limbs, or other parts of the anatomy. The injury sustained by a personal injury plaintiff need not manifest itself instantly and may develop over time.

There are several types of events or accidents that may form the basis of a personal injury claim, including:

Numerous types of accidents may happen. It may be useful to review accident statistics to help individuals be more ready and prevent accidents before they happen.

What Kinds of Acts Form the Basis of a Personal Injury Claim?

A personal injury may arise intentionally, such as when a defendant deliberately injures a victim or intends to commit an act that results in injury. A personal injury may also occur unintentionally.

If an unintentional injury results from someone’s negligence, then a plaintiff may file a lawsuit based on the negligent behavior. Automobile accidents, slip and fall accidents, and injuries sustained from medical malpractice, are all considered negligence cases.

What Are “Frolic” and “Detour”?

“Frolic” and “detour” are two categories of employee actions in a personal injury case. In both categories of actions, the employee is engaged in conduct outside the scope of their employment and is done for their benefit.

The employer may or may not be responsible for the damage incurred depending on whether the worker’s actions are deemed to be a frolic or a detour.

What Is a Frolic?

A frolic happens when an employee or agent makes a severe departure from their employer’s or principal’s required service. For example, an employee should deliver a package to a post office. During their trip, they drive to a grocery store and hit a pedestrian in the store’s parking lot. The trip to the store was so far outside of the employee’s scope of assigned duties that it constituted a frolic. An employer is not responsible for the employee’s actions during the frolic because it is not reasonably foreseeable to the employer that the employee would have been in the grocery store’s parking lot.

What Is a Detour?

A detour ensues when an employee makes a minor departure from their employer’s charge. For example, the employee is told to go to the post office to drop off a package. While at the post office, the worker purchases a birthday card and whacks another customer with their elbow while pulling the card out of the display carousel.

Since the worker’s actions of getting a birthday card to buy at the same time as dropping off the package to be mailed were minor, getting the card would be deemed a detour. The employer is responsible for the employee’s actions during the detour because it is reasonably foreseeable to the employer that a worker may also buy a personal item while at the post office.

How Are Frolic and Detour Determined?

A court will inquire whether the worker’s conduct was in the general nature of their employment, such as where the worker was supposed to be at the time of the accident. It also looks at the worker’s activity when the tortious behavior ensued.

What Is the Scope of Employment?

The scope of employment is the extent of an employee’s actions as required to perform their work tasks. It requires an employee to operate as expected during work per the terms of their employment. This scope varies according to the responsibilities and duties of each job.

Generally, the scope of employment requires that an employee is acting as expected under the terms of their employment. The scope of a person’s employment changes according to the specifications and responsibilities of each job.

There are several circumstances where a worker may be outside the scope of employment:

  • Independent Contractors: Workers who perform for the employer but are not legally employees.
  • Frolic: workers who engage in behavior outside of the expected terms of employment. For instance, an employee expected to deliver packages goes to watch a movie instead and becomes involved in an automobile accident on the way to the theater.
  • Illegal Acts: Illegal acts, such as assault, fall outside the scope of employment. However, some careers may still subject the employer to liability. A shopping mall, for instance, could be held responsible for a security guard’s assault on a buyer.

Are Employers Accountable for Unforeseeable Actions?

The rule of vicarious liability sometimes holds employers liable for their employees whose actions were unforeseen.

These include:

  • The employer had control over the employees during work hours: Because the employer had control over the actions of their employees, they should be held responsible.
  • Employer benefits from the employee’s actions: The employee brings in profits for the employer. Thus, the employer should be responsible for any losses.

Are There Any Defenses an Employer Might Use Against Vicarious Liability?

An employer can use several defenses if sued under a theory of vicarious liability. These defenses include, but are not limited to:

  • The worker was not an employee under the employer’s control and direction.
  • The employee was not acting within the scope of employment.
  • The employer took reasonable precautions to limit an employee’s offending behavior, such as providing proper training.
  • Applicable defenses in other civil liability cases, such as contributory negligence.

Should I Talk to a Lawyer About Frolic and Detour Laws?

Suppose you have been injured by a person who hurt you while they were working. In that case, you need to contact a personal injury lawyer to discuss vicarious liability and see if you can sue the person’s employer for your injury.

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