Frolic and Detour - What Constitutes A Frolic Vs. A Detour

What 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 employ, 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:

1. 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.)
2. Place: was the place where the incident occurred within the scope of the employee's employment?
3. Authorization: was the employee a manager and thus have more latitude in their operation, or was the employee occupying an entry level position?
4. Foreseeability of the employee's departure.
5. Normalcy of the employee's departure.
6. Purpose: was the departure personally motivated or for the benefit of the employer?
7. Special obligation: was a special duty placed upon the employee such as a common carrier or innkeeper?
8. Common sense.
9. Scope of employment.