Normally the employer is responsible for the negligent acts of the employee under Respondeat Superior, a legal doctrine, most commonly used in tort
, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency. The mill is liable if H was acting within the scope of his employment. Respondeat superior
is a doctrine of enterprise liability that "attempts to link risks to benefits and hold accountable for risk-creating activities the enterprise that stands to benefit from those activities."2 The doctrine imposes on one party (traditionally labeled "the master") vicarious liability - i.e., liability without fault - for the torts of another party (traditionally labeled "the servant"). The reach of the doctrine depends on two concepts: "servant" status and "scope of employment." Respondeat superior
applies only if a "servant" commits a tort while acting within "the scope of employment."
In most modern cases, the "scope of employment" is also clear. For centuries the core domain of respondeat superior
has been torts of negligence which cause bodily harm, and within that core the typical case involves an employee who is careless while "on the job." Interesting questions exist at the margin -such as "frolic and detour"5 and whether an employee whose job necessitates traveling from place to place is "within the scope of employment" when so traveling.
Respondeat superior liability is not based on fault of the employer, but rather is imposed based on a policy choice that liability for acts committed within the scope of employment ought to be allocated to employers as a cost of doing business. Respondeat superior represents a compromise between two competing policies. On the one hand, we seek to protect and/or compensate those harmed as a result of some business-related activity. On the other hand, we are hesitant to impose liability on an employer not directly at fault for the act that caused the harm. The general policy, then, is that we will not impose such liability unless there is some connection between the tort and the business such that the employer in essence assumed the risk when it chose to engage in the business. That connection is the basis for the scope of employment test ... .8
Note the basic equation between "scope of employment" and an employer's "cost of doing business." When an employee:
- commits an intentional tort
- entirely for his or her own purposes, and
- the employer has not been negligent in hiring, training, supervising, and retaining the employee http://www.mnbar.org/benchandbar/2002/nov02/respondeat-superior.htm
Here the employer would claim that they were not liable because H was on a detour or frolic.
Frolic and detour in the law of torts occur when an employee (or agent) makes a physical departure from the service of his employer (or principal). A detour occurs when an employee or agent makes a minor departure from his employer’s charge, whereas a frolic constitutes a major departure wherein the employee is acting on his own and for his own benefit, rather than a minor sidetrack in the course of obeying an order from the employer. The employer will be relieved of vicarious liability, which is usually assessed through the doctrine of respondeat superior for torts committed by the employee, only if the employee has deemed to engaged in a frolic
section 228 of the Restatement (Second) of Agency:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Here H's conduct was not within the scope of his employment not authorized and he was serving his own purpose, to gain favor. However, if the D could show that this type of activity had happened before and the mill did nothing, then liability would attach.