When an individual is injured, he will likely look to someone with deep pockets to compensate him for his injuries. This is especially concerning for employers who may be held liable for such injuries even if they are caused by their employee.

There are several legal doctrines by which the employer may be held liable when someone is injured by an employee. One such example is respondeat superior, otherwise called the master-servant rule, whereby an employer is held vicariously liable for the tortious activities of the employee.

Establishing Employer Liability for Respondeat Superior

There is a general three-part test for establishing vicarious liability on the part of the employer. The injured party has the burden of proving that the employee was working at the direction of the employer, the employer had control of the employee and the employee’s actions were within the scope of employment.

What Activities Qualify for Respondeat Superior?

A tortious action occurs when someone causes injury or harm to someone else. The action may be intentional, negligent or otherwise a violation of law. Intentional action is undertaken intentionally and causes harm. Conversely, negligent action occurs when reasonable care is not taken and it results in injury.

There are different types of intentional torts with each requiring specific elements to establish a cause of action. In the case of negligence, the injured person must establish that the person who is alleged to have caused the injury had a duty to the injured party, breached that duty, caused the injury alleged, and that there are resulting damages.

Who is Considered an Employee Under the Doctrine of Respondeat Superior?

Because respondeat superior applies to the actions of an employee, it is important to identify who may be considered an employee versus an independent contractor.  Generally, the difference between an employee and an independent contractor comes down to the employer's relationship with the worker.

Specifically, does the employer have the right to control the worker's conduct, including control over how work is carried out and when the worker may carry out the work.  State laws may offer some factors to consider when seeking to establish employee versus independent contractor status. In addition to the type of instruction given to a worker by the employer, those additional factors include:

  • Perception by the worker as to whether they are an employee or independent contractor;
  • Structure of compensation;
  • Skills required to complete job;
  • Training provided by employer to worker;
  • Schedule of work dictated by the employer;
  • Whether work is done for the employer consistently;
  • Payment by the employer of benefits such as Social Security, unemployment compensation, overtime wages, health coverage;
  • Employer's withholding of income taxes; and
  • Provision of equipment by employer.

What Activities are Considered to be in the Scope Of Employment?

The court will inquire into whether the action at issue relate to the job for which the employee was hired. That is, was the party injured during the course of the employee’s assigned duties and responsibilities.

Conversely, the employer cannot be held liable under respondeat superior for work outside the scope of the employee’s employment. Outside the scope of employment refers to when a worker is doing something that is not reasonably part of or consistent with his job responsibilities. Work outside the scope of employment may also be known as "frolic" and "detour," which means the employee was engaging in conduct outside the scope of their employment and done for their benefit.

For example, a delivery truck driver who hits a child while the driver was on his way to pick up his dry cleaning maybe an example of this. While other legal doctrines may be applicable, the employer may not be held liable for the employee’s actions under respondeat superior.

What is a Frolic Under Respondeat Superior?

In determining whether the employee's action is considered a frolic, the court may look at whether the employee made a serious departure from the employer's required service.

Referring to the example above, the delivery driver may be considered to have engaged in a frolic because it is outside the scope of his  assigned duties. In determining liability, inquiry will be made into whether this frolic is considered reasonably foreseeable to the employer.

What is a Detour Under Respondeat Superior?

Similarly, a detour occurs when an employee makes a departure from the duties to which he is assigned. In the case of a frolic, the departure may be considered major, whereas a detour may be considered a minor departure, but a departure nonetheless.

Let's say in the example above that the delivery driver is in the process of dropping off cartons of produce to a client supermarket and decides he wants to pick up some candy for his children.

This might be considered a minor departure from his usual duties of delivering the employee's produce. Again, the employer's liability may be established because the detour may be reasonably foreseeable to the employer that the employee might purchase an item from the supermarket.

Do I Need An Attorney for Your Claim of Respondeat Superior?

Employers facing a claim of respondeat superior from a injured third-party should contact a local personal injury lawyer to help them determine the next steps. If you are an employee who are facing a personal injury lawsuit but believe the doctrine of respondeat superior applies, then you may want to consider contact a local employment lawyer.