Clickner v. City of Lowell, 663 N.E.2d 852 (Mass. 1996). · Go Syfert
Clickner v. City of Lowell, 663 N.E.2d 852 (Mass. 1996). Cases Citing This Book View Copy Cite
“most jurisdictions have ruled that the mere fact of being on call does not place employees within the scope of them employment.”
89 citation events (78 in the last 25 years) across 14 distinct courts.
Strongest positive: Lev v. Beverly Enterprises-Massachusetts, Inc. (massappct, 2009-06-18)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Lev v. Beverly Enterprises-Massachusetts, Inc.
Mass. App. Ct. · 2009 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
travel to and from home to a place of employment generally is not considered within the scope of employment
discussed Cited as authority (quoted) Canney v. Strathglass Holdings, LLC
Me. · 2017 · quote attribution · 1 verbatim quote · confidence low
most jurisdictions have ruled that the mere fact of being on call does not place employees within the scope of them employment.
discussed Cited as authority (rule) Gifford v. Commonwealth of Massachusetts
D. Mass. · 2025 · confidence medium
The three factors to be considered when determining whether an employee’s conduct is within the scope of his employment are “(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.” Merlonghi, 620 F.3d at 55 (quoting Clickner v. City of Lowell, 422 Mass. 539, 542 (1996)) (internal quotations omitted). “[S]cope of employment is not construed restrictively” and can include intentional conduct that “stems fro…
discussed Cited as authority (rule) Davis v. Commonwealth of Massachusetts
D. Mass. · 2025 · confidence medium
The three factors to be considered when determining whether an employee’s conduct is within the scope of his employment are “(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.” Merlonghi, 620 F.3d at 55 (quoting Clickner v. City of Lowell, 422 Mass. 539, 542 (1996)) (internal quotations omitted). “[S]cope of employment is not construed restrictively” and can include intentional conduct that “stems fro…
discussed Cited as authority (rule) WILLIAM J. DOYLE, Personal Representative, & Others v. CITY OF QUINCY & Others (2×)
Mass. App. Ct. · 2024 · confidence medium
L. c. 258, § 2.[7] "The scope of an employee's employment is not construed restrictively." Clickner v. Lowell, 422 Mass. 539, 542 (1996), quoting Howard v. Burlington, 399 Mass. 585, 590 (1987).
discussed Cited as authority (rule) YEKATERINA MERKULOVA v. LDJ DEVELOPMENT, LLC, & Another.
Mass. App. Ct. · 2024 · confidence medium
At this stage of the proceedings, to prevail on a claim of detrimental reliance, the defendants must present affirmative evidence to establish: "(1.) [a] representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made[;] (2.) [a]n act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made[; and] (3.) [d]etriment to such person as a consequence of the act or omission." Clickner v. Lowell, 422 Mass. 539, 544 (1996), quoting Turnpike Mo…
discussed Cited as authority (rule) Marshall v. Cheatham
Mass. Super. Ct. · 2011 · confidence medium
Northrop Grumman, relying on Clickner v. City of Lowell, 422 Mass. 539, 542-44 (1996), urges this court to hold that no reasonable jury could find that Cheatham arrived at work after he showed his CAC, was inspected, and permitted entry past the security checkpoint.
cited Cited as authority (rule) Maciorowski v. Schwarzenbach
Mass. Dist. Ct., App. Div. · 2010 · confidence medium
Clickner v. City of Lowell, 422 Mass. 539, 541-542 (1996); Howard v. Town of Burlington, 399 Mass. 585, 590-591 (1987).
cited Cited as authority (rule) Rogers Street, LLC v. MBA-Rogers Street LLC
Mass. Super. Ct. · 2009 · confidence medium
Clickner v. Lowell, 422 Mass. 539, 544 (1996).
discussed Cited as authority (rule) Arborway Committee v. Executive Office of Transportation & Construction
Mass. Super. Ct. · 2009 · confidence medium
Co., 354 Mass. 146, 151 (1968), “the parly asserting the estoppel theory ‘has a heavy burden to prove that all [three] elements are present.’ ” Clickner v. Lowell, 422 Mass. 539, 544 (1996) (brackets in original) (quoting Harrington v. Fall River Housing Authority, 27 Mass.App.Ct. 301, 309 (1989)).
discussed Cited as authority (rule) P.J. Keating Co. v. Roads Corp.
Mass. Super. Ct. · 2008 · confidence medium
Finally, to meet its burden of proving that the Defendants are estopped from asserting the statute of limitations as a bar to their claim, Keating must show [1] that the “statements of the (D)efend-ant[s] lulled [Keating] into the false belief that it was not necessary ... to commence action within the statutory period of limitations . . . , [2] that [Keat-ing] was induced by the statements to refrain from bringing suit, as otherwise [Keating] would have done, and was thereby harmed, and [3] that the [D]efendant[s] ‘knew or had reasonable cause to know that such consequence might follow.�…
discussed Cited as authority (rule) 31-35, LLC v. Zucco
Mass. Dist. Ct., App. Div. · 2008 · confidence medium
“The essential factors giving rise to an estoppel are (1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.” Clickner v. City of Lowell, 422 Mass. 539, 544 (1996), quoting Cleaveland v. Malden Sav.
discussed Cited as authority (rule) Bowditch & Dewey, LLP v. Diecast Realty Holdings, LLC
Mass. Super. Ct. · 2007 · confidence medium
“All of the elements of estoppel must be present and the party asserting the estoppel theory ‘has a heavy burden to prove that all [three] elements are present.’ ” Sullivan, supra, at 28 , quoting Clickner v. Lowell, 422 Mass. 539, 544 (1996), in turn quoting from Harrington v. Fall River Housing Authority, 27 Mass.App.Ct. 301, 309 (1989).
discussed Cited as authority (rule) Sullivan v. Chief Justice for Administration & Management of the Trial Court
Mass. · 2006 · confidence medium
“All of the elements of estoppel must be present and the party asserting the estoppel theory ‘has a heavy burden to prove that all [three] elements are present.’ ” Clickner v. Lowell, 422 Mass. 539, 544 (1996), quoting Harrington v. Fall River Hous.
cited Cited as authority (rule) Pagliarini v. Iannaco
Mass. · 2003 · confidence medium
Clickner v. Lowell, 422 Mass. 539, 544 (1996).
cited Cited as authority (rule) Realty Central, LLC v. Re/Max of New England, Inc.
Mass. Super. Ct. · 2003 · confidence medium
Clickner v. City of Lowell, 422 Mass. 539, 544 (1996).
cited Cited as authority (rule) Liquor Liability Joint Underwriting Ass'n v. Great American Insurance
Mass. Super. Ct. · 2003 · confidence medium
Clickner v. City of Lowell, 422 Mass. 539, 544 (1996); Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123 (1992), quoting Cleaveland v. Malden Sav.
cited Cited as authority (rule) Malonis v. Loiselle
Mass. Super. Ct. · 2003 · confidence medium
Clickner v. City of Lowell, 422 Mass. 539, 544 (1996).
discussed Cited as authority (rule) Chiao-Yun Ku v. Town of Framingham
Mass. Super. Ct. · 2003 · confidence medium
Factors to consider in interpreting “while acting within the scope of his office or employment” include, “whether the conduct in question is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether it is motivated, at least in part, by a purpose to serve the employer.” Clickner v. City of Lowell, 422 Mass. 539, 542 (1996), citing Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986).
discussed Cited as authority (rule) Brown v. O'Brien
Mass. Super. Ct. · 2003 · confidence medium
In holding that Waterman was not acting within the scope of employment at the time of the accident, the Clickner court took three factors into consideration: (1) whether Waterman was hired to perform the conduct in question; (2) whether such conduct “occur(ed) within authorized time and space limits”; and (3) whether such conduct was “motivated, at least in part, by a purpose to serve the employer.” Clickner v. City of Lowell, 422 Mass. 539, 542 (1996).
cited Cited as authority (rule) Glick v. Principal Mutual Life Insurance
Mass. Super. Ct. · 2002 · confidence medium
Clickner v. City of Lowell, 422 Mass. 539, 544 (1996).
discussed Cited as authority (rule) Lord v. Panaro (2×) also: Cited "see, e.g."
Mass. Super. Ct. · 2001 · confidence medium
“The scope of an employee’s employment is not construed restrictively." Clickner v. City of Lowell, 422 Mass. 539, 542 (1996).
discussed Cited as authority (rule) Champa v. Town of Billerica
Mass. Super. Ct. · 2001 · confidence medium
Clickner v. Lowell; Waterman, 422 Mass. 539, 542 (1996) (police officer driving to work drunk after playing golf was acting independently and not “within the scope of his office or employment” under G.L.c. 258, §2).
cited Cited as authority (rule) Beal Bank v. Amelia
1st Cir. · 1999 · signal: cf. · confidence medium
Cf. Clickner v. City of Lowell, 422 Mass. 539, 544 (1996) (setting forth the elements of the estoppel defense).
cited Cited as authority (rule) Dahlstedt v. State Farm Insurance
Mass. Super. Ct. · 1998 · confidence medium
Clickner v. Lowell; Waterman, 422 Mass. 539, 544 (1996).
cited Cited as authority (rule) Cossaboom v. Lewis Restaurant & Grill, Inc.
Mass. Super. Ct. · 1996 · confidence medium
Clickner v. Lowell; Waterman, 422 Mass. 539, 543 (1996).
cited Cited as authority (rule) Gaudet v. Ridino
Mass. Super. Ct. · 1996 · confidence medium
Clickner v. City of Lowell, 422 Mass. 539, 544 (1996) (quoting Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123 (1992)).
cited Cited "see" Martineau v. DV-8 Production, Inc.
Mass. Super. Ct. · 2012 · signal: see · confidence high
See Clickner v. Lowell, 422 Mass. 539, 542 (1996).
cited Cited "see" Martineau v. DV-8 Productions, Inc.
Mass. Super. Ct. · 2009 · signal: see · confidence high
See Clickner v. Lowell 422 Mass. 539, 542 (1996).
cited Cited "see" Rabin v. Taylor
Mass. Super. Ct. · 2004 · signal: see · confidence high
See Clickner v. City of Lowell, 422 Mass. 539 (1996).
cited Cited "see" Massachusetts Port Authority v. Ace Property & Casualty Insurance
Mass. Super. Ct. · 2004 · signal: see · confidence high
See Clickner v. City of Lowell 422 Mass. 539, 544 (1996).
cited Cited "see" Coyne v. United States
D. Mass. · 2003 · signal: see · confidence high
See Clickner v. City of Lowell, 422 Mass. 539, 542 , 663 N.E.2d 852 (1996).
cited Cited "see" Pagliarini v. Iannaco
Mass. App. Ct. · 2003 · signal: see · confidence high
See Clickner v. Lowell, 422 Mass. 539, 544 (1996).
cited Cited "see" Ahlstrom v. Salt Lake City Corp.
Utah · 2003 · signal: see · confidence high
See Clickner v. City of Lowell, 422 Mass. 539 , 663 N.E.2d 852 (1996).
cited Cited "see" Bay Colony Systems, Inc. v. Judson
Mass. Super. Ct. · 2002 · signal: see · confidence high
See Clickner v. Lowell, 422 Mass. 539, 544 (1996).
cited Cited "see" Coyne v. United States
D. Mass. · 2002 · signal: see · confidence high
See Clickner v. City of Lowell, 422 Mass. 539 , 663 N.E.2d 852 , 855 (1996). 36 .
cited Cited "see" Finn v. Genrad, Inc.
Mass. Super. Ct. · 2002 · signal: see · confidence high
See Clickner v. City of Lowell, 422 Mass. 539, 544 (1996).
cited Cited "see" Hosking v. Contributory Retirement Appeal Board
Mass. App. Ct. · 2000 · signal: see · confidence high
See Clickner v. Lowell, 422 Mass. 539, 544 (1996).
cited Cited "see" Kahn v. Royal Insurance
Mass. · 1999 · signal: see · confidence high
See Clickner v. Lowell, 422 Mass. 539, 545 (1996); Riley v. Presnell, 409 Mass. 239, 249 (1991).
discussed Cited "see, e.g." Weichel v. Walsh
D. Mass. · 2025 · signal: see also · confidence low
Triplett v. Town of Oxford, 439 Mass. 720, 726 , 791 N.E.2d 310 (2003) (emphasis in original); see also Clickner v. City of Lowell, 422 Mass. 539, 542 , 663 N.E.2d 852 (1996) (section 9 “provides for the permissive indemnification of public employees”); Pinshaw v. Metropolitan District Commission, 402 Mass. 687 , 693 n.10, 524 N.E.2d 1351 (1988) (“Section 9, unlike § 9A [which addresses indemnification of state police employees], deals with permissive, not mandatory, indemnification of public employees”).
discussed Cited "see, e.g." McIntyre Ex Rel. Estate of McIntyre v. United States
1st Cir. · 2008 · signal: see also · confidence low
Comm’n, 402 Mass. 687 , 524 N.E.2d 1351, 1356 (Mass.1988) (quoting Wang Labs., Inc. v. Business Incentives, Inc., 398 Mass. 854 , 501 N.E.2d 1163, 1163 (Mass.1986)); see also Clickner v. City of Lowell, 422 Mass. 539 , 663 N.E.2d 852 , 855 (Mass.1996).
discussed Cited "see, e.g." Jalbert v. TIMOTHY GRAUTSKI
D. Mass. · 2008 · signal: see also · confidence low
"Under Massachusetts law, conduct of an employee 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 substan *72 tially within the authorized time and space limits; and (3) it is motivated, at least in part, by a purpose to serve the employer.” McIntyre v. United States, 447 F.Supp.2d 54, 108 (D.Mass.2006) (internal citations omitted); see also Clickner v. City of Lowell, 422 Mass. 539, 542 , 663 N.E.2d 852 (1996).
discussed Cited "see, e.g." Caranci v. Pillarisetty
Mass. Super. Ct. · 2006 · signal: compare · confidence medium
The same section further provides; The remedies provided by this chapter shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the public employer or, the public employee or his estate whose negligent or wrongful act or omission gave rise to such claim, and no such public em ployee or the estate of such public employee shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment Section 1 defines a “public employer�…
cited Cited "see, e.g." Edwards v. Sullivan & Cogliano Companies, Inc.
Mass. Dist. Ct., App. Div. · 2002 · signal: see also · confidence medium
See also Clickner v. Lowell, 422 Mass. 539, 544 (1996).
cited Cited "see, e.g." Rotundi v. Arbella Mutual Insurance
Mass. App. Ct. · 2002 · signal: see also · confidence medium
See also Clickner v. Lowell, 422 Mass. 539, 544 (1996) (party asserting estoppel theory has heavy burden).
Retrieving the full opinion text from the archive…
Susan Clickner & another
v.
City of Lowell & another Francis M. Waterman, third-party
Massachusetts Supreme Judicial Court.
Apr 25, 1996.
663 N.E.2d 852
Thomas E. Sweeney, City Solicitor, for the city of Lowell., Allen H. Forbes for Francis M. Waterman.
Lynch.
Cited by 63 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 93%
Citer courts: Supreme Judicial Court of Maine (1)
Lynch, J.

This appeal raises the issues whether, at the time of an automobile accident, Francis M. Waterman, a police officer of the city of Lowell, was acting within the “scope of his office or employment” for purposes of the Mas[*540] sachusetts Tort Claims Act, G. L. c. 258, § 2 (1994 ed.), and whether the city is estopped from claiming that he was not.[3]

John and Susan Clickner brought an action against the city for the injuries they sustained in an automobile accident with Waterman. Prior to trial in a separate proceeding Waterman and the city agreed to a settlement of the Clickners’ claim and to litigate the issue of the city’s liability and Waterman’s immunity. After a bench trial on the issue of contribution a Superior Court judge ruled that Waterman was not acting within the “scope of his office or employment” at the time of the accident and that the city was not estopped to contest the issue.

Waterman filed a timely notice of appeal, and we transferred the case here on our own motion. We affirm.

We summarize the judge’s findings of fact. Waterman had been a police officer for the city for nineteen years. When his supervisor was not working, as was the case on the day in question, Waterman was in charge of the narcotics unit.

The police department had a policy of using motor vehicles forfeited in drug seizures for surveillance and other work-related activities. The seized vehicles were frequently driven home by unit officers under an unwritten policy. The forfeited vehicles, and in particular, the automobile driven by Waterman at the time of the accident, were owned by, and registered to the city.

On the day prior to the accident, Waterman had received permission to use a city vehicle to attend a golf tournament in Groton. The use of the vehicle would allow Waterman to report for his shift or to respond immediately to any emergency calls without returning home.

On the day of the accident Waterman, who was scheduled to work from 5 p.m. to 1 a.m., attended the golf tournament and subsequent awards ceremony from approximately 7:30 a.m. until 4:30 p.m. Over the course of the day he drank at least four beers and left the golf course at 4:30 p.m. in a condition of intoxication. While driving to his scheduled 5[*541] p.m. shift from Groton to Lowell, he received a page from a subordinate at the police station. As was the policy of the department, Waterman used the cellular telephone in the automobile to respond to the page. At approximately 4:50

р. m., as he was attempting to respond, he drove the automobile across the center line of the road and collided with the motor vehicle in which the Clickners were riding. The telephone call was not completed and he never spoke to his subordinate or anyone else at the police station immediately prior to the accident.

The Clickners suffered serious injuries. Waterman was allowed to leave the scene of the accident to obtain medical treatment. He was later arrested and found guilty of operating while under the influence of intoxicating liquor and failure to yield.

As a result of the incident, the city commenced a disciplinary action against Waterman. By a letter dated July 31, 1991, the city manager notified him that he was to receive sixty days “punishment duty” for “conduct unbecoming an officer” and “any other conduct or omission contrary to good order and discipline.” The notice specifically referred to the automobile accident as occurring “while not on duty.” On August 7, 1991, Waterman responded that he was “troubled with the wording ‘while not on duty’ ” contained in the letter. The notice indicated that he had a right to a public hearing and he requested one. He did not object to the discipline but was fearful that admitting he was “not on duty” would expose him to civil liability for the accident.

On August 8, 1991, the city notified Waterman of the date and time of the requested hearing. Prior to the hearing, on August 12, 1991, the city manager sent him a second notice of disciplinary action, identical in all respects to that of July 31, 1991, except that the words “while not on duty” were omitted. Thereafter, he withdrew his claim for a public hearing and accepted the sixty days punishment duty.

1. Scope of employment. The Massachusetts Tort Claims Act provides in part that public employers shall be liable for injuries caused by the negligence of any public employee while acting in the scope of his office or employment. G. L. с. 258, § 2. A restrictive view of the protection to public employees contained in this statute would encourage them to view their duties in an unreasonably restrictive manner. How[*542] ard v. Burlington, 399 Mass. 585, 591 (1987). On the other hand, an overbroad interpretation would create unreasonable liability for municipalities.

Although we have never interpreted the phrase “acting within the scope of his office or employment” of § 2 of the Massachusetts Tort Claims Act, we have interpreted the nearly identical language of G. L. c. 258, § 9 (1994 ed.), which provides for the permissive indemnification of public employees. There we looked to common law to find the meaning of the phrase. See Pinshaw v. Metropolitan Dist. Comm’n, 402 Mass. 687, 694 (1988); Howard v. Burlington, supra at 589-590. See also Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859 (1986). We see no reason to depart from that approach in construing G. L. c. 258, § 2.

The common law test considers whether the act was in furtherance of the employer’s work. Howard v. Burlington, supra 590, and cases cited. “The scope of an employee’s employment is not construed restrictively.” Id., citing Commonwealth v. Jerez, 390 Mass. 456, 461-462 (1983).

Factors to be considered include whether the conduct in question is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether it is motivated, at least in part, by a purpose to serve the employer. Wang Lab., Inc. v. Business Incentives, Inc., supra, and cases cited. See Restatement (Second) of Agency § 228 (1958).

In applying this test to the facts of this case we note that the only factors tending to show that Waterman was acting in the furtherance of the employer’s work are: At the time of the accident Waterman was driving an automobile registered to the city, on his way to his scheduled shift at the station; he was “on call”; and he was in the course of responding to a page from a subordinate at the station. Factors mitigating against his acting in the furtherance of his employer’s business are: He was using the vehicle for his own purposes; he was in the town of Groton where he was not authorized to act as a police officer; his shift had not yet begun; he was not being paid at that time; and he was intoxicated and unfit for duty.

Waterman, although authorized to drive the city’s automobile, was not acting in the furtherance of the employer’s business simply because he was going to work. Travel to and[*543] from home to a place of employment generally is not considered within the scope of employment. See Mosko v. Raytheon Co., 416 Mass. 395, 399 (1993), and cases cited.[4] It is also relevant that he was neither on duty, nor in a place helpful to his employer. Waterman had no authority to act as a police officer in Groton. Commonwealth v. LeBlanc, 407 Mass. 70, 74-75 (1990).

Thus for Waterman to be held to be acting within the scope of his employment, we must rely on the facts that he was on call and responding to a page at the time of the accident.[5] Most jurisdictions have ruled that the mere fact of being on call does not place employees within the scope of their employment.[6]

We are left with the question, therefore, whether his act of responding to the page was enough to tip the balance and to bring his conduct within the scope of employment for purposes of G. L. c. 258, § 2. Waterman’s actions throughout the day of the accident were in the furtherance of his own agenda. He had spent the day playing golf and had attended[*544] a function where he consumed an amount of beer sufficient to render him intoxicated. The judge found he was not permitted to perform his job while intoxicated, and that he was not fit for duty at the time of the accident. The judge ruled that “[t]he mere fact that just prior to [the accident] Waterman was attempting to contact his subordinate by cellular telephone in response to her page does not work an electronic alchemy and transmute his entire course of conduct into the kind of work which he was employed to perform.” We agree. In light of all the events of the day we conclude that the momentary act of responding to a page was not enough to make his driving the automobile which had hitherto been for a daylong personal excursion an activity within the scope of his employment.

2. Estoppel. Waterman also argues that the city is estopped from asserting that he was not acting within the scope of employment because the second notice of disciplinary action omitted the words “while not on duty” after Waterman had sent a letter saying that he was troubled by that language in the first notice. Waterman claims that he withdrew his request for a public hearing, relying on the city’s omission of the language “while not on duty” to indicate its acceptance that he was within the scope of his employment for purposes of G. L. c. 258, § 2.

“The essential factors giving rise to an estoppel are . . . (1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.” Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123 (1992), quoting Cleaveland v. Malden Sav. Bank, 291 Mass. 295, 297-298 (1935).

All of the elements of estoppel must be present and the party asserting the estoppel theory “has a heavy burden to prove that all [three] elements are present.” Harrington v. Fall River Hous. Auth., 27 Mass. App. Ct. 301, 309 (1989), citing Jones v. Department of Health & Human Servs., 843 F.2d 851, 853 (5th Cir. 1988). We agree with the judge that there was no representation by the city or its agents that, if Waterman withdrew his request for a hearing, the city would[*545] consider him to have been acting within the scope of his employment for purposes of G. L. c. 258. The judge ruled that the removal of the language “while not on duty” was not a representation that the city would take the reverse proposition that he was on duty. The city cannot be estopped from asserting a position when it never represented by conduct or by words that it would do otherwise. As the first element of estoppel is not satisfied, we need not reach the other elements.

Judgment affirmed.

3

Section 2 of G. L. c. 258 (1994 ed.) provides in pertinent part:

“Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances . . . .”

4

Waterman argues that he falls within the exception to the “going and coming” rule established by Wormstead v. Town Manager of Saugus, 366 Mass. 659, 667 (1975). Wormstead did not involve finding a master-servant relationship between the parties for tort liability, rather it involved a claim for leave without loss of pay. Id. at 662. This involved worker’s compensation analysis, not imputed tort liability under respondeat superior principles.

5

We stated in Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859-860 (1986), that the fact that the predominant motive of an agent is to benefit himself does not prevent the act from coming within the scope of employment as long as the act is otherwise within the purview of his authority. That case involved a tortious interference by an employee with a business contract where the court found that the employee’s conduct was that which he was employed to perform and within the authorized time and space. The facts in the present case are different where the employee was not acting within the authorized limits of time and space and where his conduct was not clearly that which he was hired to perform.

6

See Sheror v. B & E Convalescent Ctr., 49 Cal. App. 3d 227, 229 (1975) (“on call” employee who was reporting to regular shift, not acting within scope of employment); Ehlenfield v. State, 62 A.D. 2d 1151, 1152 (N.Y. 1978) (“on call” police officer not acting in scope of employment when involved in accident while bringing refrigerator to station). An employee who is traveling to work after being summoned by his or her employer could be acting within the scope of employment if additional facts support such a finding. See Evington v. Forbes, 742 F.2d 834, 835-836 (4th Cir. 1984) (applying North Carolina law) (employee on “call back” status traveling to work after being called in was paid for time and was in scope of employment).