dissenting:
I agree with the majority’s conclusion that Jones deviated from his master’s business “at some time before he left the Dry Dock lounge.... ” Ante at 657. I am of the opinion, however, that Jones would have reentered the scope of his employment not upon sobering up (either completely or to a level at which “his blood alcohol content dropped at least to the legal limit for performing his duty.” Ante at 657), but rather upon his taking action to return to his duties, however intoxicated he may have been upon such return.
Whether Jones’s attempted return to his truck constituted a return to the scope of his employment is a question for the factfinder. Lend Lease concedes that merely stopping for dinner and consuming alcohol did not as a matter of law take a truck driver outside the scope of his employment. Ante at 655. Intoxication also does not automatically remove an employee from the scope of his employment. Had Jones stopped, filled his cab with beer, resumed his driving duties, become intoxicated while driving toward his scheduled destination, and then collided with McNair’s motorcycle, certainly the conduct-frolic analysis espoused by the majority would dictate judgment for the employer. Ample authority exists, however, for finding respondeat superior liability in circumstances involving drunk employees. See, e.g., Garcia v. United States, 799 F.Supp. 674, 681 (W.D.Tex.1992) (“[TJhe employer should not be allowed to absolve itself of all the liability merely because its employee is legally intoxicated.”).* Jones departed from the furtherance of his *659master’s business not by drinking, but rather by staying two to three hours to drink. When the conduct-frolic ended — when the imbibing stopped, not when Jones’ blood-alcohol level subsided — Jones may then have resumed his duties at some point soon afterward. That point should be the same for an intoxicated Jones as for a sober one.
I would vacate the judgment below and remand for farther proceedings.
The majority's analogy to "conduct frolics" involving assaults is unconvincing. In Medlin, ante at 657, the sexual assault was activity that was clearly not furthering the business of the school-system employer. Similarly, the assault by the busboy in Wegner, ante at 657, involved injury-causing conduct that was held to be outside the scope of his employment. In the case before us, however, the conduct that allegedly caused the injury was negligently walking across the road toward the truck. Jones’s intoxication, at the time of the accident is relevant to the negligence issue, but not to the scope question.