What does Frolic and Detour Legally Mean?

What does Frolic and Detour Legally Mean?

by Corie Lynn Rosen, December 2009

While "frolic and detour" might sound like the hottest new band, it isn't. It's a legal principle dealing with the liability employers face when an employee goes to court.

To understand frolic and detour, you must first understand the legal concept called "vicarious liability." The concept is rooted in an employment relationship in which one person employs another person in such a way that the employee becomes the agent of the employer. For example, if a business owner wants to run a cab company, he or she will need to hire drivers. Those cabdrivers are, in essence, doing the employer's work and therefore, are agents for the employer. Tort litigation is perhaps the most frequent user of the vicarious liability theory; this theory allows someone injured by an employee to sue and collect a settlement from that person's employer.

In part, such a system is a reflection of the theories of law and economics. Those theories suggest that the party best situated to bear the cost of a risk ought to be the party to shoulder the risk. Vicarious liability creates exactly that situation. An employer is usually larger, more financially able, and better situated to control situations created as a result of the employer's business than an employee, who is usually subject to the will and wisdom of his employer.

In a way, the employer is viewed as the parent of the employee - the employer should control the actions of its employee and failure to cause the employee to behave reasonably results in the employer bearing the cost of the employee's infraction.

Of course, vicarious liability is a blanket rule and in the legal world, nearly every rule has an exception. Frolic and detour is that exception.

A frolic and detour is almost exactly what it sounds like; an employee who ordinarily would be engaged in the activities dictated by the terms of his employment briefly strays from those activities. If he or she strays far enough for the behavior or activity to be completely unrelated, the law labels the employee's actions during that time a "frolic and detour."

If an employee is engaged in a frolic and detour he or she will be personally liable for any tort committed during that time. For employers, a finding that an employee was involved in a frolic and detour at the time he or she committed a tort can be the key to shifting liability away from the employer. In the case of a small business owner, shifting liability can mean the difference between making your year and carrying debt. In some cases, especially in serious injury cases, shifting liability can mean the difference between keeping your business and declaring bankruptcy.

A determination of frolic and detour usually involves the court asking some very specific questions. Commonly, courts inquire whether or not the conduct was of the same general nature as, or was incident to, the kind of activity that the employee was hired to perform. If the tortious conduct was characteristic of the assigned task, a court is less likely to find a frolic and detour. For example, if the employer's company is a trucking company and the employee is a truck driver who injures someone while pulling his work-assigned truck out of a parking lot, even if he was running a personal errand, a court might very well find that there was not a frolic and detour involved.

Increasingly, courts are requiring a nearly total abandonment of the assigned task in order to support a finding of frolic and detour. If you are a small business owner, you should pay careful attention to monitoring your employees, you should carry insurance, and you should be explicit when defining the scope of the employee's task. With a little special attention, most employees can be warned away from tortious activity, keeping employers and themselves out of court and out of harm's way.