Frolic (law)

Frolic and detour in the law of torts occur when an employee (or agent) makes a physical departure from the service of his employer (or principal). A detour occurs when an employee or agent makes a minor departure from his employer's charge, and a frolic is a major departure when the employee is acting on his own and for his own benefit, rather than a minor sidetrack in the course of obeying an order from the employer. The employer will be relieved of vicarious liability, which is usually assessed through the doctrine of respondeat superior for torts committed by the employee only if the employee has deemed to engage in a frolic.

Similarly, in the law of workers' compensation, an employer is not liable for injuries incurred by an employee during a frolic, but the employer can still face liability for the results of a detour.

The term was coined in Joel v Morison.

An employer is vicariously liable for the unintentional torts of his employees. Similarly, a principal is liable for unintentional torts committed by an agent. This rule extends to partners in a partnership, who act as agents for one another, making each partner liable for unintentional torts committed by other partners while working for the benefit of the business. A frolic presents a situation that absolves employers, principals, and partners of this liability. A detour, comparatively, still allows a judge or jury to assess liability upon the employer, as the agent’s/employee’s actions will not be considered so far beyond the scope of employment as to absolve the employer/principal from liability without a factual assessment.

To constitute a frolic or detour, the activity must be unrelated to the employer's business. However, in order for liability to be absolved, the employee must be engaged in a frolic, and not simply a detour (which may or may not result in absolution depending on additional circumstances). For example, when a delivery truck driver takes a longer route to the location he is supposed to deliver packages to because he wants to, say, see a new controversial billboard put up in town that has caused some public debate, he has merely taken a detour from his primary role as an employee/agent of the delivery company. Were he to negligently hit a pedestrian, his employer could likely still face the prospect of vicarious liability.

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