Respondeat Superior Makes an Employer Responsible for His Employee’s Tortious Conduct

Respondeat superior means that an employer can be held liable for a tortious act of his employee if the employee commits the tort while performing his duties as an employee.  This is also sometimes called vicarious liability. The same principle can apply to a principal whose agent acts tortiously. 

The employer will not be liable if the employee commits the tort for his own interests and where his actions are not within the scope of his employment.

Example: An Employer Can be Responsible for Acts of a Delivery Driver 

Let’s say David delivers pizza for Ricky’s pizza shop.  While delivering a pizza David drives carelessly and slams his car into Patty’s car.  

Patty should be able to sue David for negligence and also sue Ricky’s pizza shop pursuant to a theory of respondeat superior.  Because David was delivering pizza he was acting within the natural and foreseeable scope of his duties as an employee of the pizza shop, therefore, the doctrine of respondeat superior should apply.  Even though Ricky’s pizza shop might not have played a direct role in causing the accident, the shop can face liability.

Example 2: An Employer is Not Responsible for an Employee Acting Outside the Scope of his Work

But let’s say David, on his day off,  decides to play a joke on Patty by jumping in front of her and screaming while she is walking down the street.  Patty is terrified and sues David for assault.

 Jumping in front of Patty and screaming has no connection to David’s job. He wasn’t even working that day,  Ricky’s pizza shop is probably not liable for David’s actions.

A ‘Frolic and Detour’ may Excuse Liability for the Employer

Courts may excuse liability for an employer if the employee commits a tortious act that is seen as far removed from the normal scope of his responsibilities and to further his own interests.  This is typically called a “frolic” or sometimes a “frolic and detour.” 

For example, let’s say David is delivering pizza but decides to take a drive to a beach miles away for his own enjoyment and causes an accident on his way to the beach.  A court is likely to conclude that David’s employer is not liable because David departed from his responsibilities and for his own purposes.  In contrast, if David takes a marginally different route to deliver a pizza to avoid traffic congestion, his employer is likely liable for his tortious conduct.


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