Thomas Orton Case Study

1632 Words 7 Pages
Statement of Facts
This is a case revolving around the alleged negligent tortious actions of Thomas Orton, working as an employee for Kingsport Home Care & Hospice. Kingsport is a hospice care business that provides at-home caregiver services to their clients. Ursula Kahn is putting forth the claim on behalf of her brother, Martin Kahn. Martin Kahn is 52 years old and has had a cognitive disability since birth. This condition requires that he not be left alone. Ursula Kahn’s job as the Executive Director at the Marblehead Community Center, does not allow her to be a full-time caregiver for Martin. Ursula contacted her friend Trish about using Trish’s new hospice business: Kingsport Home Care & Hospice, to be the caregiver for Martin. Both
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When the employee “disregards the object of his employment”, meaning the employee is not performing their job duties. Then he is not “pursing his duty as employee”, meaning he is now acting outside of his employment. Which leads to the employee “executing a design of his own”. The holding seems to indicate there is no time limit placed on the employee either. The employee can for one second act outside the scope of employment and then come back into it. In Timpson v. Transamerica Ins. Co., the court puts forward the notion of an employee’s contract laying out his duties to perform. “Olson's complaint alleges that Timpson had signed a contract with the New England Patriots requiring him to cooperate with members of the media as part of his employment.” Timpson v. Transamerica Ins. Co. 41 Mass. App. Ct. 344, 349, 669 N.E.2d 1092, 1096 (1996) Using this the court held, “Timpson made a legally enforceable promise to cooperate with the media, and then did exactly the opposite, he could not meet part (1) of the Wang Laboratories test -- he was not participating in "conduct . . . of the kind he [was] employed to perform." Id. at …show more content…
The “going and coming” rule in Mosko clearly governs this question. If Thomas Orton was backing the car up and then was going to exit the car to enter the house again to take care of some business. An argument could then be made that he was in the process of doing work which is of the kind he is employed to do. Thomas Orton would then not be leaving work to go home. Which would not be protected by the “going and coming” rule. Given the facts of the case, this seems unlikely for a judge to find that this is the case. Orton had already clocked out and gave no indication that he was going to do any other work. A judge would most likely find that Thomas Orton was simply leaving work. Therefore, the “going and coming” rule would protect Kingsport from liability for Thomas Orton’s action in this instance. A contract between Kingsport and Thomas Orton would clarify if closing the garage was part of the work Thomas Orton was employed to do. Otherwise, Thomas Orton’s actions of leaving work would the not be of the kind he was employed to work. Which would not satisfy the first element of scope of

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