Pham v. OSP Consultants, Inc
In Pham v. OSP Consultants, Inc., 992 P.2d 657, 659 (Colo. Ct. App. 1999),, the Colorado Court of Appeals acknowledged "a fundamental difference" between liability in workers' compensation cases and liability under the doctrine of respondeat superior:
While perhaps ninety percent of the decisions on the course of employment in routine cases are interchangeable between the two fields of workers' compensation and respondeat superior liability, the analogy breaks down in certain close cases because of a fundamental difference between the two types of liability. In the law of respondeat superior, the harmful force is always an act of the servant, or at least the omission which is the equivalent of an act. The inquiry is whether performance of the act was in furtherance of the master's business. But in many workers' compensation situations, the harmful force is not the employee's act, but something acting upon the employee. 1 Larson, Workers' Compensation Law 14.00 at 4-1 (1998) (emphasis in original).
Put another way, the scope of employment may be treated differently because the policy considerations for imposing liability on employers, as a matter of social duty, differ. As a result, "there may be situations where it may be proper to hold an employer liable for compensation benefits to the employee and yet not hold the employer responsible for that employee's conduct in causing injury to a third person arising out of the same situation." See Liberty Mutual Insurance Co. v. Electronic Systems, Inc., 813 F.Supp. 802, 806 (S.D. Fla. 1993). Id. (concluding that, for the purposes of determining respondeat superior liability, an out-of-town employee permitted to use a company truck for purposes related to his work was not acting within the scope of his employment when he used the truck to drive to a bar, where he danced, drank beer, and ate tacos from a food truck in the bar's parking lot).