Space Limits Vs. Thomas Orton's Lack Of Employment

B. Thomas Orton was not within the time and space limits of his employment
Thomas Orton was not within the time and space limits of his employment when he committed the tortious act against Martin Kahn. For Kingsport to be found liable for Thomas Orton’s actions under a theory of respondeat superior, his actions must be within the scope of his employment. Lev v. Beverly Enters.-Massachusetts, 457 Mass. 234, 238, 929 N.E.2d 303, 308 (2010) The rule for scope of employment, as stated in Lev v. Beverly Enterprises-Massachusetts, is “the 'conduct of an agent is within the scope of employment . . . if it occurs substantially within the authorized time and space limits”. Id. at 238. To meet the element, you must have findings of being within both

the time and space limits. Most of the court opinions treat time and space limits as if it were one question instead of separate questions about time limits and then space limits.

This analysis will treat them as one question as well, but the analysis will look into both factors.
The rule generated from Lev has its genesis in the case of Vallavanti v. Armour & Co., 260 Mass. 417, 419-20, 157 N.E. 527, 528 (1927) The holding in the case doesn’t use the language that the rule in Lev uses when citing Vallavanti as where “authorized time and space limits” came from. The holding in Vallavanti merely stated, “There was no ostensible authority to use the defendant's runabout after hours and for his own pleasure.” Id. at 419-20. After hours is the operative phrase which will be the focal point of our analysis. The facts of the case in Vallavanti was defendant’s, Pizzeri, work was to stop at 5pm. He had already finished the work that he was employed to do for the day. He was then directed by an agent of his employer, to take a car and drive the agent across town. He then took the same car and drove back home, where he was involved in an accident with the plaintiff. The plaintiff contended that Pizzeri was acting within the scope of his employment when driving the car. The judge disagreed and ruled against the

plaintiff. Stating that the time and space limits element was not satisfied. The judge held, “There was no ostensible authority to use the defendant's runabout after hours and for his own pleasure.” Id. at 419-20. Vilidnitsky v. C. Cote Interiors, Inc. details further what could be meant by substantially within the authorized time, “Gardner's conduct in this case did not occur" substantially within authorized time and space limits" The drive back from the Sports Pub took place sometime near 11:00 p.m. (well outside of normal work hours)” Vilidnitsky v. C. Cote Interiors, Inc., 33 Mass. L. Rep. 44 (2014) Using the holding found in Vilidinitsky, it is inferred that the test involves normal work hours, and if the action happened either outside or during the work hours. Indeed, this notion is also supported in another case, Mosko v. Raytheon Co. The tortious conduct in that case happened at a party. The court held that, “The party was not held on Raytheon's premises or during working hours.” Mosko v. Raytheon Co., 416 Mass. 395, 399, 622 N.E.2d 1066, 1068 (1993) It used this holding as a determination that the person who committed the tortious act was not within the scope of his employment.
Similarly, in Clickner v. City of Lowell, the court refers to whether the tortfeasor’s shift had started. “Factors mitigating against his acting in the furtherance of his employer's business are: . . . his shift had not yet begun.” Clickner v. City of Lowell, 422 Mass. 539, 542, 663 N.E.2d 852, 855 (1996) Even if the individual was on call at some point before or after his shift. “Most jurisdictions have ruled that the mere fact of being on call does not place employees within the scope of their employment.” Id. at 543. The court doesn’t make mention of being on call again. Which must mean that it agrees with the notion in the quote. That simply being on call is not a factor to consider whether an individual is with the scope of employment. A judge may use a test similar to the one outlined in Vilidintsky in determining if the conduct was within the time limits.
Thomas Orton’s conduct did occur within the space limits of his employment. Both time and space limits need to be met. Even though the time limits are not met, an analysis of space limits is still warranted for completeness. There is not a lot of explanation from common law stating what space limits are. However, inferences can be made from the rulings. Such as in Vilidnitsky v. C. Cote Interiors, Inc., 33 Mass. L. Rep. 44 (2014). The tortious act in that case, “occurred on a highway in Framingham far from the Wayland job site Gardner was employed to manage.” Vilidnitsky v. C. Cote Interiors, Inc., 33 Mass. L. Rep. 44 (2014) (fix citation, add reporter) For that very reason the court held, “Gardner's conduct in this case did not occur "substantially within authorized time and space limits." Id. at 8. The rule can be inferred that space limits refers to the place where the work is to be performed. Although the above case is a Superior Court opinion, this inference is given positive treatment by the Supreme Court of Massachusetts in Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 405, 558 N.E.2d 958, 967 (1990). In this case, the tortious act of an employee at a daycare facility was alleged to have happened at the daycare during school hours. The court in that case held, “Because some of the abuse is alleged to have been committed off the school grounds” Id. at 405. that it did not satisfy the space limit rule.
From these rulings, I believe that a judge would rule that Thomas Orton’s conduct did not fall within the authorized time and space limits of his work under Kingsport. Kingsport signifies when his work is authorized and to begin by clocking in, and when his work is to end by clocking out. Thomas Orton had already clocked out before the incident took place. This is most similar to the holding in Clickner. Where the fact that the defendant’s shift had not yet begun was factor showing he was not within the time limits of his employment. Although in the present case, Thomas Orton’s shift was ending it should have the same effect as in Clickner.
The difference between this case and the current jurisprudence on the books is that the tortious conduct happened right after Thomas Orton’s work hours ended.

Cases such as Mosko and Vilidintsky involve the alleged tortious actions happening well after the normal hours have ended. The rule does include the word “substantially” within it. Which could indicate that actions that happen right after normal hours have ended would fall within the time limits. However, nothing by the courts has made any intimation to that effect however. Also, most of the cases like the present case above involve people driving from or to work when the torts happened. The courts in each of those cases found that the employee was not within the time limits of their

employment.
Since the tortious act, in the present case, was committed in the driveway. The only way for the conduct to be within the space limits would be if the driveway would constitute as the premises of his workplace. The facts show that Thomas Orton would leave to go on errands, such as getting groceries, and return to the house and parking in the driveway. The logical extension is that the driveway is where Thomas Orton did perform some of his work, so it could be included as part of the work premises. Which could lead a judge to make the same assertion. This lines up with the holdings in Vilidnitsky and Worcester. Where all of the conduct is committed on the premises, like in the present case, then the conduct is held to have happened within the space limits of Kingsport’s employment. For that reason, the space limits requirement is satisfied. However, Thomas Orton’s conduct did not happen within Kingsport’s work hours. Which doesn’t satisfy the time requirements element of the rule. Therefore, Thomas Orton’s actions would not satisfy the second element of scope of employment, “if it occurs substantially within the authorized time and space limits”.