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Icy Roads, Respondeat Superior and Scope of Employment

Icy Roads, Respondeat Superior and Scope of Employment

This week, much of Texas experienced icy conditions on the roadways, resulting in many school and business closures. Some such “inclement weather” closures may be strictly for humanitarian reasons, but others may be, at least in part, for employer liability reasons. This article discusses when an employer may be held liable for an employee’s actions, which is known in the law as “respondeat superior.”

First, some history: The doctrine of respondeat superior, as with most legal doctrines referred to in Latin, comes from ancient common law. The doctrine originated in the Roman era of slaves and masters, and later expanded to the broader feudal system of serfs and lords, but for this article, we will use the more modern and politically correct concepts of employer and employee. The basis for the doctrine is twofold: First, an injured party is unlikely to recover much in damages from a lowly employee, and would typically fare better if the law allowed them to recover instead from the “deeper pockets” of the employer. Second, it is considered unjust to hold an employee liable for actions taken on behalf of their employer, but in some cases, both the employer and employee may be liable.

There are many variables for whether an employer can be held liable under respondeat superior, but they essentially figure into answering one of two questions: (1) was the actor an employee, and (2) was the employee acting within the scope of their employment? For purposes of this discussion, we’ll focus on the scope of employment and just assume that the employee is, in fact, an employee.

When motor vehicles are involved, special rules apply to determine whether an employee is acting within the scope of their employment. Sometimes driving a motor vehicle is clearly within the scope of employment, such as when the employee is a delivery driver and is making a delivery. However, what if the delivery driver gets into an accident while picking up their dry cleaning “on the way” to a delivery destination? When an employee ceases to further their employer’s interests and begins to act in their own interest, this is known as a “deviation,” “detour,” or “frolic,” and the employer is generally not held responsible for actions taken by the employee at such time. But what if the dry cleaning was the employee’s work uniform, or what if the employee was instead pulling into a restaurant for an employer-sanctioned lunch break? As you can see, determining whether an employee is on a frolic can be rather complicated, and is usually a question for the factfinder—the judge or jury.

What about accidents that occur on the employee’s commute, i.e. while driving to or from work? In this case, it could matter whether the employee is driving their own car or a company car. Specifically, an employee is generally not considered to be within the scope of employment when commuting in their own car, but is presumed (rebuttably) to be within the scope of employment when commuting in a company car. Odd, huh? Perhaps even more odd, there is generally no legal distinction for whether the employee was driving to or from work, despite the drive to work being arguably in furtherance of the employer’s interest and the drive home being arguably in furtherance of the employee’s interests.

Given these variables, hazardous road conditions such as ice may factor into an employer’s decision to close the business during inclement weather, especially if they employ delivery drivers or if their employees are issued company cars. Despite being beyond the scope of this article (see what I did there?), determining whether or not someone is an employee can be just as complicated as determining whether they are acting within the scope of their employment, and both determinations must be made in the affirmative for the employer to be held liable under respondeat superior. Perhaps we’ll discuss the employee-or-not issue in the future, but for now, just be careful when you frolic on the roadways.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.

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