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When is an employee acting within the scope of his or her duties for purposes of a negligence claim?

In Massachusetts, the law requires that for a plaintiff to prove a case in negligence, the plaintiff must prove that: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant was the actual cause of the plaintiff’s injury; (4) the defendant was the proximate cause of the injury; and (5); the plaintiff suffered damages. When a plaintiff is injured by an employee acting within the scope of the employee’s employment, the plaintiff may recover from the defendant employee and the defendant employee’s employer.

Suppose that a defendant gate security business, Gates 4 U, employed two gatekeepers. Both employee gatekeepers worked together during a single shift and took turns to allow the other to take breaks for lunch. One day, gatekeeper Joshua was due to take his lunch break. Although Joshua could have enjoyed his lunch in the cafeteria on the premises of Gates 4 U, Joshua drove his car on his lunch break to a nearby juice bar to try a new vegan beet juice. On his return from the juice bar, Joshua ran a red light and caused a car accident, injuring a plaintiff.

In trying to determine whether to sue Joshua, Gates 4 U or both, the plaintiff wonders whether Gates 4 U is liable for the plaintiff’s injuries—because, after all, Joshua was still due to work the remainder of his shift on the day of the accident.

In Massachusetts, this answer is governed by principles of agency law. Generally, employers are vicariously liable for the negligence of employees while the employee is acting within the scope of the employee’s employment.[1] “Under the doctrine of respondeat superior, ‘an employer, or master, should be held vicariously liable for the torts of its employees, or servants, committed within the scope of employment.”’[2] If decisions are made to “serve the employer,” then the employee may be acting within the scope of his or her employment.[3] Therefore, these types of matters are dependent upon the specific facts of each case. [4]

A Massachusetts court would likely hold that Gates 4 U is not liable because Joshua was on his break; Gates 4 U did not give actual or implied authority for Joshua to leave. Suppose, however, that instead of taking a lunch break, Joshua was instructed by a Gates 4 U supervisor to make a delivery or deposit funds at the bank, and the accident occurred while performing his duties as an employee. Assuming that the Gates 4 U’s supervisor had the authority to tell Joshua to use his car on official business, then Gates 4 U may be liable to the plaintiff under a theory of vicarious liability because Joshua was serving his employer.

These matters are often fact-specific. As such, it is important that you confer with experienced personal injury counsel on your case. If you have any questions about personal injury matters, call us for a free consultation at 617-657-HURT (4878) or fill out our contact form here.


[1] Charles Lev v.Beverly Enterprises-Massachusetts, Inc., & Others, 457. Mass. 234, 238 (2010)

[2] Id. (quoting Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320 (2002))

[3] Charles Lev, 457 Mass. at 238 [(citing to Mosko v. Raytheon Co., 416 Mass. 395, 399 (1993)) (quoting Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986)); See, Restatement (Second) of Agency § 228 (1958)].

[4] Charles Lev, 457 Mass. at 238.

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