When traffic collisions are caused by an employee who is on the clock, the employer can be held liable through a legal concept called vicarious liability, or respondeat superior. Fortunately for employers, the law gives way to reason in allowing employers to avoid that liability if the employee was not acting within the scope of his employment duties. So, what does this mean, and what is considered to be within the scope of employment?
To start, an employee is not considered to be acting within the scope of his employment when he is commuting to and from work. However, the law recognized what they call the “special-errand” rule. In summary, if the employee is not simply on his way from his home to his normal place of work or returning from the same to his home for his own purpose, but is running an errand as part of their regular duties or a specific order, then he is still “within the scope of employment” and the employer can be held liable. This rule is equally applied when the employee is tasked with working at a job site that he does not typically report to. This liability for special errands or new sites does not end until the employee has returned from the errand or now deviates for personal reasons, and that deviation must be substantial and complete, such as going home for the day.
Frolic and Detour
When an employee’s tasks include driving of any sort, and that employee is involved in an accident, then the employer will be found liable unless that employee had deviated from his path so substantially that it can be said he was no longer acting within the scope of his duty. He was now on a “frolic,” as differentiated from a “detour.” A detour occurs when the employee takes a minor deviation from his path, such as to get food, gas, take an alternate route with the same destination, and so on. A frolic is a complete and substantial deviation from the employer’s intent to serve their own purpose.
The Balancing Test
The law looks to balance the following factors when determining whether the employee was on a detour or a frolic – whether the employer should be held liable or not – (1) the intent of the employee; (2) the nature, time and place of the employee’s conduct; (3) the work the employee was hired to do; (4) the incidental acts the employer should reasonably expect the employee to do; (5) the amount of freedom allowed to the employee in performing his or her duties; (6) and the amount of time consumed in the personal activity. If the balancing of these factors tends to lean towards the employee acting reasonably within the scope of his employment, the employer will be found liable.
Although Employer’s are often found liable for the traffic collisions of their employees, this is not always the case. Employer’s who find themselves in this position and believe their employees may had substantially deviated from the scope of employment, or were simply commuting to and from work, should contact an attorney to assist in evaluating the circumstances against the above listed factors to help make the decision whether to settle, or attempt to escape liability.