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Appeals Court of Massachusetts.

Michael LOPES-RAFTERY v. Pedro AGUILAR-SANTOS & others.1


Decided: April 27, 2021

By the Court (Vuono, Hanlon & Shin, JJ.2)


The plaintiff, Michael Lopes-Raftery, commenced this action against CRL, Inc. (CRL), among others,3 seeking damages for injuries he sustained when he was struck by a vehicle driven by the defendant Pedro Aguilar-Santos, an employee of CRL. Lopes-Raftery claims that CRL is vicariously liable under the doctrine of respondeat superior for Aguilar-Santos's negligence. A judge of the Superior Court concluded that Aguilar-Santos was not acting within the scope of his employment at the time of the accident and granted CRL's motion for summary judgment. This appeal followed. We affirm.

1. Facts. We summarize the material facts in the light most favorable to Lopes-Raftery, the nonmoving party. See Lev v. Beverly Enter.-Massachusetts, 457 Mass. 234, 235 (2010). Aguilar-Santos was employed with CRL as a laborer on a construction project in Malden and was required to report to work at 6 a.m.4 On July 11, 2016, he overslept and was running late. Aguilar-Santos generally took the bus to work but, recognizing that he would not arrive on time if he did so, he decided to borrow a truck from his friend, Carrera-Guillen. Aguilar-Santos knew where the truck was parked and that Carrera-Guillen left the keys in the truck. Aguilar-Santos took the truck without Carrera-Guillen's permission and drove to work. Both Aguilar-Santos and his supervisor, Nathan Johnson, testified at their depositions that Aguilar-Santos did not stop at the worksite first, but drove directly to a parking lot across the street where employees had been instructed to park. One employee, David Holyoke, provided a contradictory statement.5 Holyoke said that Aguilar-Santos stopped at the work site first and was then told by Johnson to move the truck. As we discuss later, nothing turns on this difference. As Aguilar-Santos was parking the truck, he collided with Lopes-Raftery's motorcycle. Lopes-Raftery suffered serious, permanent injuries as a result of the accident.

2. Discussion. “Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).” Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “We review a decision to grant summary judgment de novo.” Boazova, supra.

Lopes-Raftery argues that CRL is liable to him for Aguilar-Santos's negligence because Aguilar-Santos was working for CRL and the facts establish that he was acting within the scope of his employment. It is true that an employer may be vicariously liable for harm to third persons caused by the tortious conduct of an employee committed within the scope of his employment. See Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 321-322 (2002); Wang Labs. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). An employee's conduct is within the scope of his or her employment if (1) “it is of the kind he [or she] is employed to perform,” (2) “it occurs substantially within the authorized time and space limits,” and (3) “it is motivated, at least in part, by a purpose to serve the employer.” Wang Labs., supra. The plaintiff has the burden of establishing that the employee was acting within the scope of his or her employment. See Dias, supra.

The record does not contain sufficient evidence, which, if believed, would allow Lopes-Raftery to satisfy this burden. For purposes of our discussion, we assume the veracity of Holyoke's statement.6 Thus, we assume that the accident occurred during work hours, and that Aguilar-Santos arrived first at the worksite and then departed to park his truck across the street as directed by Johnson. These facts do not demonstrate that Aguilar-Santos was working within the scope of his employment at the time of the accident. Here, it is undisputed that Aguilar-Santos was a construction laborer, and there is no evidence in the record to suggest that his duties involved driving. In addition, it is undisputed that he was not driving a truck owned by CRL. Furthermore, the mere instruction to move one's personal vehicle from the workplace does not amount to a duty or obligation within the scope of employment.7 Thus, even when the evidence in the record is viewed in the light most favorable to Lopes-Raftery, Lopes-Raftery cannot establish a genuine issue of material fact as to whether Aguilar-Santos was acting within the scope of his employment. The judge therefore did not err in granting CRL's motion for summary judgment.8

Judgment affirmed.


3.   In addition to CRL and Aguilar-Santos, Lopes-Raftery sued the owner of the truck, José Carrera-Guillen, but in December 2018 filed a stipulation of dismissal with prejudice as to Carrera-Guillen.

4.   There was conflicting evidence in the record regarding whether Aguilar-Santos's start time was 6 a.m. or 7 a.m., but nothing turns on this discrepancy.

5.   See note 6, infra.

6.   We note that Holyoke failed to appear at his scheduled deposition, and we do not equate his statements with testimony provided under oath. Nonetheless, even if we were to consider Holyoke's statement, it is not sufficient for Lopes-Raftery's claim to survive summary judgment.

7.   Lopes-Raftery's reliance on Howard v. Burlington, 399 Mass. 585 (1987), for his argument that Johnson's command to move the truck brought Aguilar-Santos's driving within the scope of his employment is misplaced. First, Howard dealt with the scope of employment for public employees under G. L. c. 258, § 9, and the Supreme Judicial Court explicitly stated that its holding applied to the term “scope of employment” for “the purposes of” that statute. Howard, supra at 591. Second, the Supreme Judicial Court in Howard noted with respect to the doctrine of respondeat superior, that “it is ordinarily the actual and customary ․ duties which determine scope of employment.” Id. at 590. In the case before us, it is undisputed that driving a truck was not part of Aguilar-Santos's “actual and customary” employment-related duties. Id.

8.   In light of our conclusion, we need not address CRL's remaining arguments in favor of summary judgment. In addition, given our conclusion, we need not resolve whether the “going and coming” rule relied on by the judge in this case is applicable. See Lev, 457 Mass. at 238.

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