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 aWhat 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 employment, 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 the following: #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.) #Place: was the place where the incident occurred within the scope of the employee's employment? #Authorization: was the employee a manager and thus have more latitude in their operation, or was the employee occupying an entry-level position? #Foreseeability of the employee's departure. #Normalcy of the employee's departure. #Purpose: was the departure personally motivated or for the benefit of the employer? #Special obligation: was a special duty placed upon the employee such as a common carrier or innkeeper? #Common sense. #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.See also
*References
* * *{{cite web, url=https://uk.practicallaw.thomsonreuters.com/2-207-4045?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1, title=No vicarious liability where employee "on a frolic of his own", date=6 Dec 2006, work=uk.practicallaw.thomsonreuters.com, accessdate=25 March 2018, url-access=registration Tort law Labour law