On January 28, a woman was killed on Route 128 after a mattress fell from the roof of a truck onto the highway near Burlington Mall. A car stopped quickly to avoid hitting the mattress, which caused another vehicle behind the first car to crash into its rear. The Massachusetts State Police are still looking for the truck that was carrying the mattress. Although investigators do not currently know who was driving the truck, if it is found that the mattress was being carried for a business purpose, and that the mattress was negligently secured, the company may be held liable for the negligence of the driver. This is called vicarious liability.
Under common law, employers can be held liable for the wrongful acts of their employees – including negligent driving – if the act was performed within the scope of the employees’ duties. Under the doctrine of respondeat superior, for an action to be considered within the scope of employment, it has to be authorized by the company or so connected to an authorized action that it is fundamental to it. To differentiate between what is, and what is not within the scope of an employee’s duties, courts often use the terms ‘detour’ vs. ‘frolic.’
A detour takes place when an employee merely makes a small digression from what his or her employer has told the employee to do. A frolic, on the other hand, takes place when there is a major digression from what the employer had told the employee to do. Although an employer will be held liable for the actions of an employee if the employee’s actions were a mere detour, the employer will not be held liable if the actions constituted a frolic.
An example may further clarify. John is employed by Acme Mattress Removal Company to take old mattresses from people’s homes during the workweek. On the road, while driving a truck full of mattresses, a mattress flies off the back of the truck and causes an accident. Acme Mattress Removal Company will be responsible for John’s actions because he was performing his job when he caused the accident. Even though John was the one who negligently secured the mattresses, the company will still bear responsibility. On the other hand, if John takes the Acme truck home for the weekend without permission, and then in a fit of road rage throws a mattress out of the back of his truck at a car behind him and causes an accident, Acme will probably not be held liable. Courts will consider those actions a frolic.
While it is currently unknown whether or not the truck that caused the accident on Route 128 was a company truck, or just an average driver with a mattress in the back, understanding vicarious liability in car accident cases is very important. It can mean the difference between obtaining the compensation you deserve, and obtaining very little.