Respondeat Superior

This latin term refers to the basic rule is that the employer (principal) will be liable for the negligent acts of an employee (agent) if those acts were part of the employee’s or agent’s duties, did not represent a radical departure from the normal conduct of the employee or agent, and were performed at an authorized time and place.  Where, however, the employee has so far departed from the employer’s business that the employee has embarked on a “frolic of his own,” the employer will not be liable, on the theory that the employee is completely outside the scope of employment. It is a factual question of whether person was acting within the “scope of employment” when they committed said acts.

Employee’s  Negligent Conduct

The “scope of employment” prerequisite for vicarious liability in Minnesota varies with the nature of the conduct at issue. To support a finding that an employee’s negligent acts occurred within his scope of employment: the court analyzes four factors:

  1. The conduct was to some degree in furtherance of the employer’s interests
  2. The employee was authorized to perform the type of conduct
  3. The conduct occurred substantially within authorized time and space restrictions
  4. The employer should reasonably have foreseen the conduct.

Four Factors Scope of Employment Test

Today, all except the most obvious deviations suffice to take the issue of agency, detour, or frolic to the jury. In general, it is difficult for an employee who has gone outside the scope of employment and engaged in a frolic to return to the employment by resuming an activity intended to benefit the employer. Where the act or locale of the employee represented something that could benefit or was intended to benefit the employer, courts hold it to be in the scope of employment or to constitute a return to employment. However some courts take a dim view of an employee returning to the scope of employment. One court said that once an employee departs from the scope of employment for a personal errand, the entire trip thereafter is regarded as personal. However, a slight “detour” from the employer’s business is not enough to exonerate the employer.


In Edgewater Motels, Inc. v. GatzkeI, the employee, A.J. Gatzke, was staying in a motel in Duluth while he helped the Walgreen Company open a new restaurant. 277 N.W.2d at 13. One evening, after several hours discussing the new restaurant over drinks at a Duluth bar, Gatzke returned to his motel room and smoked a cigarette while he finished filling out some expense reports. Id. at 14. His cigarette butt later started a fire in the motel room’s waste basket and caused over $300,000 in damage to the motel. Id. The motel sued Gatzke for the damage and alleged that the Walgreen Company was vicariously liable.

The Gatzke court first concluded that it could not dismiss the possibility that Walgreen was vicariously liable simply because the damage was caused by smoking, an activity that was not required as part of Gatzke’s job. The court explained, “an employee does not abandon his employment as a matter of law while temporarily acting for his personal comfort when such activities involve only slight deviations from work that are reasonable under the circumstances, such as eating, drinking, or smoking.” Id. at 16. Thus, “an employer can be held vicariously liable for his employee’s negligent smoking of a cigarette [if] he was otherwise acting in the scope of his employment at the time of the negligent act.” Id. The Court then determined that there was sufficient evidence for a jury to believe that Gatzke was acting within the scope of his employment throughout the evening of the fire. Id. The court noted that the expense reports Gatzke was filling out while he was smoking were related to his employment for the Walgreen Company, and that he did not necessarily step out of the course of employment during his evening of business-oriented conversation at the bar. Id. Finally, the court added that Gatzke was effectively a “24–hour–a–day man” with a motel room for a temporary office, meaning that his smoking was within the “time and space” of his employment. Id. at 17.

Compare that with a similar case, Mosby v. McGee. McGee was smoking after the conference events were over for the day, at a time when he was not doing anything traceable to his work responsibilities, in a place that had no formal connection to his employment. In those circumstances, the Court found no evidence sufficient to persuade a reasonable juror that McGee’s actions on the night of the smoking caused fire were “in furtherance of the interests of his employer.”

The more current definition of “in furtherance of the employer’s” interests requires only that the conduct must be brought about “at least in part” by a desire of the employee to serve the employer or that the conduct is “to some degree,” in furtherance of the interests of the employer.To analyze whether the evidence satisfies this factor, the court applies the lower standard of “at least in part” or “to some degree”(liability may exist if employer benefitted from the acts of its employees).

Intentional Conduct

When an injury results from an employee’s intentional misconduct, Minnesota courts will impose liability on the employer if:

  1. The employee was engaged in conduct that was related to or reasonably incidental to employment duties
  2. The conduct was foreseeable from the nature of employment
  3. The conduct occurred within the work-related limits of time and place.

The critical inquiry to determine if the source of the harm is related to the duties of the employee is whether the employee’s acts were foreseeable.

Negligent Hiring & Retention

In addition to respondeat superior, Minnesota recognizes three negligence causes of action against an employer for injuries caused by one of its employees: negligent hiring, negligent retention, and negligent supervision.

Negligent Hiring

To win a negligent hiring claim, the injured party must show both:

  1. The employee who injured the person was incompetent or unfit to perform the job
  2. The employer had actual or constructive knowledge that the employee was incompetent or unfit to perform the job

This means the employer knew or had reason to know the employee was incompetent or unfit to perform the job, such as the employee was violent or had the propensity to engage in tortious conduct. The Minnesota Supreme Court upheld a jury verdict finding apartment managers negligent for failing to make a reasonable investigation into the background of their property manager who sexually assaulted a resident. The court defined negligent hiring as “predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”

Negligent Retention

Negligent retention occurs when, after the employee has been hired, the employer becomes aware or should have become aware of facts that show the employee posed a threat and the employer failed to investigate or take some action such as terminating the employee or reassigning the employee. Stated differently, if an employer becomes aware or should have been aware that an employee has exhibited behavior that makes it foreseeable that the individual may act violently against another employee, it gives rise to a duty of care.

No Reimbursement from Employees

After an employer is held liable for the acts of an employee, the employer may want to hold the employee liable and seek reimbursement from the employee. Presently, Minnesota law prevents this. When an employer is liable for an employee’s acts within the scope of employment, generally, the employee is not responsible to reimburse the employer for the harm.