"Under the doctrine of respondeat superior, 'an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment.' " Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 929 N.E.2d 303, 308 (2010) (quoting Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 780 N.E.2d 447, 449 (2002)). In numerous opinions, the SJC has explained that Massachusetts courts are to determine whether an employee's conduct is within the scope of his employment based on (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."

Still, not all tortious conduct committed by an employee in connection with his or her work is within the scope of that employee's employment. See Lev v. Beverly Enters.–Mass., Inc., 457 Mass. 234, 239, 929 N.E.2d 303 (2010) (nursing home chef was not acting within scope of his employment where he drove home intoxicated from work meeting during which he consumed alcohol and then caused accident); Clickner, 422 Mass. at 543-544, 663 N.E.2d 852 (officer who became intoxicated during golf outing was not acting within scope of employment even though he was answering work-related telephone call at time he crashed town-owned vehicle into plaintiffs). See also Merlonghi v. United States, 620 F.3d 50, 56 (1st Cir. 2010) (computer forensics specialist employed to aid in criminal investigations acted in furtherance of his own agenda and not within scope of employment when, on his way home from work, he engaged in car chase, unholstered his gun, made threatening gestures, and drove in dangerous manner, striking motorcyclist with government-owned vehicle issued to specialist to permit him to respond efficiently to emergencies).

That duty does not typically extend to controlling the conduct of a third party—here, Levine—unless a “special relationship” exists between the party posing a risk to others and the party who can prevent that harm from occurring by taking action. Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 242, 929 N.E.2d 303 (2010). We have recognized the relationship between an employer and employee as a type of special relationship “that potentially would give rise to a duty of care [to third parties] ... when ‘the employment facilitates the employee's causing harm’ ” to them (citation omitted).

Fundamentally, the existence of a duty of care depends upon the foreseeability of a risk of harm that the defendant has an ability to prevent. See Lev v. Beverly Enters.-Mass., 457 Mass. 234, 243, 929 N.E.2d 303 (2010), citing Irwin v. Ware, 392 Mass. 745, 756, 467 N.E.2d 1292 (1984). Thus, as a property owner, the defendant owed a duty to maintain his property in a reasonably safe condition to avoid foreseeable injury to all lawful visitors.

Fundamentally, the existence of a duty of care depends upon the foreseeability of a risk of harm that the defendant has an ability to prevent. See Lev v. Beverly Enters.-Mass., 457 Mass. 234, 243 (2010), citing Irwin v. Ware, 392 Mass. 745, 756 (1984). Thus, as a property owner, the defendant owed a duty to maintain his property in a reasonably safe condition to avoid foreseeable injury to all lawful visitors.

"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Lev v. Beverly Enterprises–Massachusetts, Inc., 457 Mass. 234, 237, 929 N.E.2d 303 (2010) (Lev ), quoting from Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358, 676 N.E.2d 815 (1997). The burden rests on the defendant, as the moving party, to affirmatively demonstrate the absence of a genuine issue of material fact on every relevant issue.

The doctrine of respondeat superior renders an employer "vicariously liable for the torts of its employee ... committed within the scope of employment." Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 929 N.E.2d 303, 308 (2010) (quoting Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 780 N.E.2d 447, 449 (2002) ). To prevail on a claim under respondeat superior, the plaintiff must establish "both that (1) an employer-employee relationship existed and (2) the alleged tortious conduct fell within the scope of employment."

The Massachusetts Supreme Judicial Court has explained that: "To prevail on a claim of negligence, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage." Lev v. Beverly Enterprises-Massachusetts, Inc., 457 Mass. 234, 239-40 (2010) (internal citation and quotation marks omitted); Go-Best Assets Ltd. v. Citizens Bank of Massachusetts, 463 Mass. 50, 54 (2012). "[T]he existence of some relationship between the governmental employee and the plaintiff to which state law would attach a duty of care in purely private circumstances is required under 28 U.S.C. § 2674."

“We summarize the material facts in the light most favorable to the plaintiff, the nonmoving party.” Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 235 (2010). Saint Vincent is an acute-care hospital that maintains a radiology department on its premises.

"We summarize the material facts in the light most favorable to the plaintiff, the nonmoving party." Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 235, 929 N.E.2d 303 (2010). Saint Vincent is an acute-care hospital that maintains a radiology department on its premises.