Respondeat Superior: Employer Liability, Scope of Employment...

Introduction

Respondeat superior (Latin for “let the superior answer”) is a rule in US law that holds an employer or principal responsible for certain wrongful acts committed by an employee or agent. If the conduct happens within the scope of employment or agency, the employer can be liable, even if the employer did nothing wrong personally. This doctrine appears most often in tort cases such as car crashes, medical malpractice, and workplace misconduct, but agency principles also shape federal discrimination law.

This guide explains how the rule works, when it applies, common defenses, and what employers, lawyers, and claimants should consider.

What You'll Learn

• What respondeat superior means and why it matters in tort and employment-related claims
• How courts decide whether conduct falls within the scope of employment
• The difference between employees and independent contractors
• Frolic vs. detour and why it can make or break liability
• How intentional torts and supervisor harassment are treated
• Key cases, including Faragher v. City of Boca Raton and Bazley v. Tortorich
• Practical steps for employers, plaintiffs, and defense counsel

Core Concepts

The Rule and Scope of Employment

Respondeat superior makes an employer vicariously liable for an employee’s tort when the act occurs within the scope of employment. The Restatement (Third) of Agency section 7.07 describes scope of employment as conduct:

• The employee is employed to perform, or
• That occurs substantially within authorized time and space limits, and
• Is motivated, at least in part, by a purpose to serve the employer.

Courts look at practical factors:

• Time and place: Did it happen during work hours or on the job site, service route, or assigned area?
• Nature of the act: Is the conduct the kind the employee was hired to perform or incidental to it?
• Purpose: Was the employee at least partly trying to serve the employer’s interests?
• Foreseeability: Was the risk a foreseeable result of the work (for example, vehicle use by delivery drivers)?

Commuting generally falls outside the scope (the coming-and-going rule). Exceptions include a special errand for the employer, driving a company vehicle with significant employer control, or on-call duties that bring the employee into work-related activity.

Employee vs. Independent Contractor

Respondeat superior typically applies to employees, not independent contractors. Courts focus on the right to control the manner and means of work:

• If the company directs how, when, and where the work is done, the worker looks more like an employee.
• If the worker controls the details, supplies tools, and bears profit or loss, the worker looks more like an independent contractor.

Important exceptions and workarounds:

• Apparent agency (especially in healthcare): A hospital may be liable for a doctor’s negligence if the patient reasonably believed the doctor was acting for the hospital and the hospital held out the doctor as its agent.
• Nondelegable duties: Some duties (such as certain safety obligations) remain with the employer regardless of contractor status.
• Inherently dangerous activities: Some states impose liability for work that carries special risks even when done by contractors.

Frolic vs. Detour

Employee deviations from assigned tasks come in two flavors:

• Detour: A minor departure still related to work (like a brief stop for coffee on a delivery route). Liability usually continues.
• Frolic: A major personal mission unrelated to work (like driving across town for a personal errand during deliveries). Liability typically ends until the employee returns to the employer’s business.

Courts weigh the extent of the deviation, duration, distance from the route, and whether the employee had resumed the employer’s business at the time of the incident.

Intentional Torts and Supervisor Misconduct

Intentional torts are not automatically outside the scope. Employers can be liable when force or confrontational conduct is a foreseeable part of the job (for example, bouncers, security staff, debt collectors). If the act arises from work-related friction or is closely tied to assigned duties, courts may find scope.

Federal anti-discrimination law uses agency principles for harassment by supervisors:

• Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth: Employers are strictly liable when a supervisor’s harassment results in a tangible employment action (firing, demotion). If there is no tangible action, the employer can raise an affirmative defense by showing it exercised reasonable care to prevent and correct harassment and the employee unreasonably failed to use complaint procedures.

Vicarious vs. Direct Liability

Respondeat superior is vicarious: liability flows from the employee’s tort. Plaintiffs often also plead direct claims against the employer, such as negligent hiring, retention, supervision, or training. These direct claims require proof of the employer’s own negligence, separate from scope-of-employment analysis.

Key Examples or Case Studies

Example 1: Delivery driver accident
A courier’s employee rear-ends another car while making scheduled deliveries. Because driving is part of the job and the crash occurs during the route, the employer is liable for the employee’s negligence. If the driver paused briefly for a fast-food pickup, most courts still treat this as a detour. If the driver left the route for a long personal trip (a frolic), the employer may avoid liability for that stretch until the driver returns to work activity.

Example 2: Medical malpractice
A hospital-employed nurse administers the wrong medication during a shift, harming a patient. The hospital is liable for the nurse’s negligence because the act occurred within assigned duties and on the job. If a physician is an independent contractor, the hospital might still face liability under apparent agency if the patient reasonably believed the physician was a hospital agent.

Bazley v. Tortorich (Louisiana Supreme Court)
The court applied agency principles to hold an employer responsible for an employee’s negligent acts committed within the course and scope of employment. The opinion highlights that employer liability turns on whether the employee was furthering the employer’s business at the time.

Faragher v. City of Boca Raton (U.S. Supreme Court)
Female lifeguards alleged a hostile work environment created by supervisors. The Court held that employers are liable for supervisor harassment resulting in tangible employment actions. If no tangible action occurs, the employer may assert an affirmative defense by showing reasonable care to prevent and correct harassment and that the employee unreasonably failed to take advantage of those measures.

Practical Applications

For plaintiffs and their counsel

• Prove the relationship: Gather payroll records, job descriptions, W-2s, uniforms, schedules, and policy manuals to show employee status and employer control.
• Establish scope: Collect dispatch records, GPS data, timecards, delivery logs, security footage, and witness statements to show the employee was on duty and performing assigned tasks.
• Address deviations: Pin down timing, distance, and purpose to counter frolic arguments.
• Consider alternative theories: Plead negligent hiring/retention/supervision or apparent agency where contractor status is claimed.
• In harassment cases: Document supervisor status, tangible employment actions, and employer policies and training to address Faragher/Ellerth issues.

For defense counsel

• Contest scope: Emphasize personal errands, off-the-clock activity, location and timing outside work, or the coming-and-going rule.
• Employee vs. contractor: Show limited control, independent business operations, contractor agreements, and insurance carried by the worker.
• Raise Faragher/Ellerth defense: Produce policies, training records, complaint channels, prompt responses, and proof the employee did not report.
• Explore workers’ compensation: If the injured plaintiff is the employer’s own employee, workers’ comp exclusivity may bar certain tort claims against the employer.
• Coverage review: Confirm available insurance (auto, general liability, professional liability, EPLI) and tender early.

For employers and risk managers

• Clarify roles: Use accurate job descriptions and worker classification, and review control factors to avoid misclassification.
• Set clear rules: Written policies on vehicle use, phone use while driving, patient care protocols, and workplace conduct.
• Train and supervise: Regular training on safety, harassment prevention, reporting channels, and incident response.
• Maintain documentation: Keep time and GPS logs for drivers, credentialing files for clinicians, and records of complaints and corrective action.
• Review contracts and signage: Contractor agreements should reflect actual practice. In healthcare, be transparent about physician status to reduce apparent agency claims.
• Insurance: Carry appropriate limits for auto, general liability, professional liability, and employment practices.

Summary Checklist

• Confirm employer–employee relationship or an agency theory such as apparent agency.
• Show the conduct occurred within the scope of employment using time, place, purpose, and foreseeability factors.
• Distinguish detour (minor, still within scope) from frolic (major personal mission).
• Address commuting and special-errand exceptions to the coming-and-going rule.
• For intentional torts, evaluate whether the job involves foreseeable confrontations or use of force.
• In harassment cases, identify supervisor status, tangible employment actions, and whether the Faragher/Ellerth defense applies.
• Consider direct negligence claims against the employer (hiring, supervision, retention) as alternatives or supplements.
• Preserve and request key records: policies, training logs, timesheets, GPS, dispatch, and complaint files.
• Assess insurance coverage early and tender promptly.

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