Fiocco v. . Carver
234 N.Y. 219, 137 N.E. 309, 1922 N.Y. LEXIS 638 (1922)
Rule of Law:
An employee who has made a substantial departure from their duties for a personal purpose (a frolic) does not re-enter the scope of employment until the frolic is completely over and the employee's dominant purpose is once again the performance of the employer's business.
Facts:
- The defendants' driver was instructed to return a truck to a garage on the west side of Manhattan after making a delivery.
- Instead, the driver went to the east side of Manhattan to visit his mother.
- While there, he encountered a neighborhood carnival and gave a ride to a large group of boys, making a tour of the district.
- The driver stopped the truck in front of a pool room to speak with a friend.
- The plaintiff, an eleven-year-old child, attempted to climb onto the truck, which was still crowded with the other boys.
- The driver ordered the plaintiff off the truck three times.
- As the plaintiff was climbing down, the driver started the truck, causing the plaintiff's foot to be drawn into a wheel.
- At the moment he started the truck, the driver claimed his intention was to return to the garage.
Procedural Posture:
- The plaintiff sued the defendants (the driver's employer) in the New York Trial Term (trial court).
- A jury rendered a verdict in favor of the plaintiff.
- The defendants appealed to the Appellate Division of the Supreme Court of New York (intermediate appellate court).
- The Appellate Division affirmed the trial court's judgment by a divided vote.
- The defendants, as appellants, then brought the case before the Court of Appeals of New York (the state's highest court) for final review.
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Issue:
Does an employee who has made a substantial departure from the course of his employment for a personal errand re-enter the scope of employment merely by starting to return to his assigned route, if the circumstances of the personal errand are still ongoing at the moment of a negligent act?
Opinions:
Majority - Cardozo, J.
No. An employee who has substantially departed from the scope of employment does not resume their duties simply by forming an intent to return; the departure must have ended, and the dominant purpose of the employee's actions must be to serve the employer. The presumption that an employee is acting within the scope of employment is rebutted when the circumstances of their conduct are so irregular as to be unreasonable. Here, the driver's actions constituted a clear abandonment of duty, or a "frolic." His mere mental resolve to return to the garage was insufficient to re-establish the employment relationship because the circumstances of his personal frolic—namely, the presence of the crowd of merrymakers on the truck—were still ongoing and directly contributed to the plaintiff's injury. For duty to be resumed after such a manifest departure, there must be a clear and substantial division between the personal errand and the return to work; here, the homeward trip was inextricably 'bound up with the effects of the excursion.'
Analysis:
This decision refines the 'frolic and detour' doctrine in tort law, establishing a high bar for an employee to be considered back within the scope of employment after a significant personal departure. The court rejected a simple geographic or temporal test, instead opting for a holistic analysis that considers the aggregate of circumstances, including space, time, and the causal link between the frolic and the injury. This makes it more difficult for plaintiffs to hold employers vicariously liable when an employee's personal and business purposes are commingled at the time of the tortious act, requiring a clear cessation of the personal activity before liability can reattach to the employer.
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