This instant matter, Berry v. Com. Ins. Co., No. SJC-13089, 2021 WL 4944557 (Mass. Oct. 25, 2021), involves a question of whether a police officer was acting within the “scope of his office or employment” under the Massachusetts Tort Claims Act, G.L. c. 258 § 2, when his personal vehicle struck and injured a fellow officer during a paid lunch break.

On the date of the accident at issue, the plaintiff, Russell Berry of Raynham Police Department, attended a mandatory firearms training session. The training officer was one Shawn Sheehan. Officer Sheehan was paid 8 hours of overtime to conduct firearms training for the benefit of other officers.

The officers were “on duty” but in plain clothes. After the morning session, the officers left for their paid lunch breach. Officer Sheehan left in his vehicle, insured by Commerce Insurance, to pick up lunch off site. He testified during his deposition that it was a “working lunch” that day to discuss further issues with the officers present.

In driving back to the range, Officer Sheehan testified that he drove “faster than he should have”, spinning the rear tires, kicking up gravel. He drove directly towards the picnic table at which the plaintiff was seated. Despite applying the breaks, Officer Sheehan’s truck slid into the picnic table, pinning the plaintiff’s leg and causing him to sustain serious injuries.

The plaintiff sent a written demand to Commerce Insurance. Commerce denied coverage, indicating that Officer Sheehan was a public employee who had been acting within the scope of his employment at the time of the accident and was thus immune from tort liability under G. L. c. 258, § 2. Plaintiff filed an action in Superior Court seeking a declaratory judgement that Sheehan was not immune. Bristol County Superior Court entered a judgment in favor of the plaintiff, and Commerce appealed. The Supreme Judicial Court transferred the case on its own initiative.

Although Commerce argued that an act may be within the scope of employment even though it is tortious in nature;  the Court indicated that not all tortious acts fall within such a classification.  

The Court considered three factors: (1) "whether the conduct in question is of the kind the employee is hired to perform"; (2) "whether it occurs within authorized time and space limits"; and (3) "whether it is motivated, at least in part, by a purpose to serve the employer." Clickner, 422 Mass. at 542. See Wang Labs., Inc., 398 Mass. at 859-860

Here, the Court noted that the only factor favorable to Commerce was the question of “whether the conduct occurred within authorized time and space limits” as the accident occurred on town-owned property during a paid lunch break. The Court held however that with respect to the question of whether the conduct was “of the kind the employee is hired to perform”, the circumstances are less clear. Even though Officer Sheehan was on a paid lunch break, his conduct—approaching the range too fast with his truck, spinning his wheels and causing his truck to slide into the plaintiff—was not part of the duties he was hired to perform.

The Court finally concluded that the third factor, whether the conduct was “motivated, at least in part, by a purpose to serve the employer”, necessitated a conclusion that Sheehan was not acting within the scope of his employment. The Court noted that Officer Sheehan’s reckless driving was not motivated to serve his employer and was thus outside the scope of his duties.

The Court affirmed the Superior Court’s ruling in favor of the plaintiff.