## Facts

- Defendants owned a truck used to deliver merchandise from Manhattan to Staten Island and employed the driver.
- After completing the delivery, the driver’s assigned task was to return the truck to the defendants’ garage in Manhattan.
- The driver instead went to Hamilton Street to visit his mother for personal reasons.
- In a neighborhood street carnival, a group of costumed boys asked the driver for a ride; he drove them around the area for amusement and returned to Catherine Street.
- The driver stopped in front of a pool room and briefly left the truck to speak with a friend while boys gathered around and on the truck.
- Plaintiff, an eleven-year-old child, attempted to climb onto the truck with another boy.
- Plaintiff testified the driver repeatedly ordered him to get off; as plaintiff was climbing down, the driver started the truck without warning and plaintiff’s foot was drawn into a wheel.
- The driver claimed plaintiff ran after the moving truck and climbed on where the driver could not see him; witnesses agreed the truck left Catherine Street still carrying boys.
- The driver testified that after the stop he intended to return to the garage.

## Issues

1. Whether the driver was acting within the scope of employment at the time of the accident so as to impose vicarious liability on the truck owners under respondeat superior.
2. Whether the presumption arising from employer ownership and employee custody of the vehicle was overcome as a matter of law by proof of a personal departure.
3. Whether a driver’s stated intent to return to the employer’s task is enough to show re-entry into the scope of employment when objective circumstances show the personal mission was ongoing.

## Decision

- The Court of Appeals of New York reversed the judgment for the plaintiff and dismissed the complaint with costs.
- The court held the driver was not acting within the scope of employment at the time of injury.
- The court concluded the driver’s use of the truck was a substantial personal departure and had not objectively ended when the accident occurred.

## Legal Principles

- Employer ownership and employee operation or custody of a vehicle creates a prima facie inference that the employee is acting within the scope of employment, but the inference can be rebutted by undisputed circumstances.
- Respondeat superior does not apply when the employee’s conduct is a substantial personal “frolic” that displaces the employer’s business.
- An employee does not re-enter the scope of employment merely by forming an intention to resume the employer’s work; there must be an objective, concrete return showing the personal enterprise has ended.
- When the evidence conclusively shows the employer’s business was set aside for personal purposes, scope of employment can be resolved as a matter of law against vicarious liability.

## Conclusion

The court held the employer was not vicariously liable because the driver’s carnival ride-taking and unrelated stops were a personal frolic, and the circumstances at the accident site showed the deviation had not ended despite the driver’s stated intent to return to the garage.


Fiocco v. Carver, 137 N.E. 309 (N.Y. 1922)