When an individual is injured, they will likely look to someone with deep pockets to compensate for their injuries. This is especially concerning for employers who may be held responsible for such damages even if their employee causes them.

There are several legal doctrines that the employer may be held responsible for when an employee injures someone. 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.

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

The burden of proof rests on the individual wanting to hold an employer responsible. Thus, getting accurate records about the scope of employment is essential.

What Is the Scope of Employment?

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 differs according to the specifications and duties of each job.

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

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

Are Employers Accountable for Unforeseeable Actions?

The rule of vicarious liability sometimes holds employers responsible for their workers 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 accountable.
  • Employer benefits from the employee’s actions: The worker 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 supplying proper training.
  • Applicable defenses in other civil liability cases, such as contributory negligence.

Establishing Employer Liability for Respondeat Superior

There is a general three-part test for establishing vicarious liability on the employer’s part. The injured party has the burden of establishing that the employee was working at the employer’s direction, 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 happens when someone causes injury or harm to someone else. The action may be intentional, negligent, or otherwise a violation of the law. Intentional action is undertaken intentionally and causes harm. Contrarily, negligent action occurs when reasonable care is not taken, resulting in harm.

There are different types of intentional torts requiring specific elements to establish a cause of action. In the case of negligence, the injured individual must prove that the person alleged to have caused the injury had a duty to the injured party, breached that duty, caused the injury alleged, and resulted in damages.

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

Because respondeat superior applies to the actions of an employee, it is essential to identify who may be considered an employee versus an independent contractor. Typically, 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 how work is carried out and when the worker may carry out the work? State laws may offer some factors to consider when establishing 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;
  • Arrangement of compensation;
  • Skills required to complete the job;
  • Training supplied by the employer to the worker;
  • Schedule of work dictated by the employer;
  • Whether work is done for the employer invariably;
  • Payment by the employer of benefits such as Social Security, unemployment compensation, overtime wages, and health coverage;
  • Employer’s withholding of income taxes; and
  • Provision of equipment by the employer.

What Activities Are Considered to Be in the Scope Of Employment?

The court will inquire into whether the action relates to the job for which the employee was hired. Was the party injured during the employee’s assigned duties and responsibilities?

Contrarily, the employer cannot be held responsible under respondeat superior for work outside the scope of the employee’s employment. Outside the scope of employment refers to a worker 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 instance, a delivery truck driver hits a child while the driver is on his way to pick up their dry cleaning. While other legal doctrines may be applicable, the employer may not be held responsible 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 examine whether the employee made a severe 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 their assigned duties. In determining liability, an inquiry will be made into whether this frolic is deemed reasonably foreseeable to the employer.

What Is a Detour Under Respondeat Superior?

Likewise, a detour occurs when an employee departs the duties to which they are assigned. In the case of a frolic, the departure may be considered significant, whereas a detour may be regarded as a minor departure, but a departure nonetheless.

In the example above, the delivery driver is in the process of dropping off cartons of produce at a client’s supermarket and decides they want to pick up some candy for their children.

This might be deemed a minor departure from the usual duties of delivering the employee’s produce. Furthermore, the employer’s liability may be shown 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 an injured third party should contact a local personal injury lawyer to help them determine the next steps. If you are an employee facing a personal injury lawsuit but believe the respondeat superior doctrine applies, you may want to consider contacting a local employment lawyer.