A West Virginia woman recently filed a wrongful death lawsuit against a deputy sheriff and the Kanawha County Commission, his employer, claiming that the deputy’s careless actions while driving led to her mother’s death in 2011.
On October 7, 2011, the woman was driving on Route 60, while her mother was in the passenger seat. As the woman moved to make a left-hand turn onto another road, Deputy Sheriff David Duff came toward them from the opposite direction in a Chevy Malibu. He accelerated slightly to beat a traffic light, and the two cars collided. At some point, shortly before the collision, the woman alleges (and Duff admitted) that he was making a personal phone call without using a hands-free device and could not be sure that he had a green light. The woman’s mother was taken to the hospital, suffering from serious injuries to her shoulder, pelvis, and bladder. She died 11 days later.
The woman charges the Kanawha County Commission with negligence, including poor training and supervision. She claims that as a result of the accident and her mother’s death, she is suffering from significant emotional distress, mental pain and suffering, loss of physical health, and loss of enjoyment of life. Through her West Virginia wrongful death attorneys, she seeks unspecified damages and interest.
This case appears to be an example of “respondeat superior,” or vicarious liability, where the injured party seeks to hold the employer liable, as well as the employee responsible for the injury. An employer is usually found liable in cases of respondeat superior when the employee caused the injury (1) while acting within the time and space of his job, (2) while performing the employee’s typical job duties, and (3) while acting to benefit the employer.
Here, it is not clear that the Kanawha County Commission would be found liable under respondeat superior. Deputy Sheriff Duff may have been in the midst of performing job duties, perhaps driving to the scene of a conflict. However, he admitted that shortly before the collision, he had been taking a “personal” phone call, which may have diverted his attention. In personal injury law, an employer is not responsible for the employee’s actions if the employee was engaged in a “frolic.” A “frolic” is a complete departure from the employee’s duties, even if it takes place during the employee’s work hours. For instance, if the employee took time off to go visit a friend, that would likely be considered a frolic. By contrast, a “detour” is a slight deviation from the employee’s normal work routine, such as taking a longer route to a customer’s location for a personal reason, and an employer can still be held liable for an employee’s poor decisions during that time.
Without having more facts to assess the situation, Deputy Sheriff Duff’s actions do not even seem divergent enough to be a detour. He was on the phone for an unknown length of time, but may have otherwise been performing his usual duties. Therefore, it is possible that Kanawha County Commission could still be held liable for his actions through respondeat superior. Even if it is not held responsible through those means, it could still be held responsible for its own separate actions that contributed to the accident, including improper training.