Opinion

RUBIN, J.

Appellant Barbara Bussard appeals from summary judgment for respondent Minimed, Inc. After review, we hold the “going-and-coming” exception to the doctrine of respondeat superior does not apply to an employee while she is driving home after becoming sick at work from exposure to pesticide fumes.

Procedural and Factual Background

On March 22, 2000, respondent Minimed hired a pest control company to spray pesticide overnight to eliminate fleas at respondent’s facility. Around 7:00 a.m. the next day, Minimed clerical employee Irma Hernandez arrived for work. She noticed a funny smell similar to “Raid.” By 10 o’clock, she felt ill, with a headache, nausea, and tightness in her chest. At noon, she told two supervisors she did not feel well enough to continue working and wanted to go home. One supervisor offered to send her to the company doctor, but Hernandez declined the offer, while another supervisor asked whether she felt well enough to drive home, and she said yes. (Eventually, nine workers went home early feeling ill and 22 employees sought medical care either that day or later for their exposure to the pesticide.)

Hernandez drove home shortly after noon. While in route, she rear-ended appellant Barbara Bussard, who was stopped at a red light. Hernandez told the police officer who responded to the accident scene that she had felt dizzy and lightheaded before the accident.1

Appellant sued Hernandez (who is not a party to this appeal) and respondent Minimed alleging a single cause of action for negligence for her *802personal injuries and property damage. She claimed respondent was vicariously liable as Hernandez’s employer under the doctrine of respondeat superior because Hernandez was acting within the course and scope of her employment when she was driving home ill from pesticide exposure.2

Respondent moved for summary judgment. It argued the “going-and-coming” rule meant Hernandez was not within the course and scope of her employment during her commute home. Accordingly, it should not be held vicariously liable under respondeat superior.

The court agreed. It noted the pesticide had not incapacitated Hernandez to the point of rendering her irrational. Thus, her exposure to it did not justify disregarding the going-and-coming rule to make respondent vicariously liable for her as she drove home sick. This appeal followed.

Standard of Review

“Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. [Citation.] In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party’s papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. [Citation.] [¶] A defendant moving for summary judgment meets his burden of proof showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.]” (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 287 [106 Cal.Rptr.2d 899].)

*803(2) “[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact. By contrast, if a defendant moves for summary judgment against such a plaintiff, he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 [107 Cal.Rptr.2d 841, 24 P.3d 493], italics and fn. omitted.)

Discussion

Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee. The doctrine’s animating principle is that a business should absorb the costs its undertakings impose on others. As one court described the doctrine, “Under the theory of respondeat superior, an employer is vicariously liable for an employee’s torts committed within the scope of employment. [Citations.] This theory is justified as ‘ “a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.”’ [Citation.] The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer’s enterprise creates inevitable risks as a part of doing business.” ’ (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558-1559 [56 Cal.Rptr.2d 333]; see also Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960 [88 Cal.Rptr. 188, 471 P.2d 988] [“ ‘The principal justification for the application of the doctrine of respondeat superior in any case is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business.’ [Citation.] Thus, it must be deemed settled in California that in accordance with the principal justification for the doctrine, the employer’s liability extends to the risks inherent in or created by the enterprise.” (Original italics.)].)

The doctrine’s application requires that the employee be acting within the course of her employment, which case law defines expansively. “In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine. For example, ‘[t]he fact that an employee is not *804engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.’ [Citation.] Thus, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. [Citation.] Moreover, ‘ “where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer.” [Citations.]’ [Citation.] It is also settled that an employer’s vicarious liability may extend to willful and malicious torts of an employee as well as negligence. [Citation.] Finally, an employee’s tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer. [Citations.]” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].)

Despite the doctrine’s wide reach, courts have not defined it so broadly as to include an employee’s daily commute. “Case law has established the general rule that an employee is outside the scope of his employment while engaged in his ordinary commute to and from his place of work. [Citation.] This principle is known as the ‘going-and-coming rule’ and is based on several theories. One is that the employment relationship is suspended from the time the employee leaves his job until he returns. Another is that during the commute, the employee is not rendering services to his employer.” (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1035 [222 Cal.Rptr. 494]; see Harris v. Trojan Fireworks Co. (1981) 120 Cal.App.3d 157 [174 Cal.Rptr. 452] (Harris) [same].)

The going-and-coming rule is not ironclad, however, and allows for several exceptions. One exception applies when an employee endangers others with a risk arising from or related to work. In determining whether such danger arises from or is related to work, case law applies a foreseeability test. Our Supreme Court describes this type of foreseeability, which is different from the foreseeability of negligence, as employees’ conduct that is neither startling nor unusual. “ ‘One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. . . . “[F]oreseeability” as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.]’ . . . [Such a test is] useful because it reflects the central justification for respondeat superior: *805that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pp. 1003-1004, italics omitted.)

This test has been applied to employees who got into car accidents on the way home after drinking alcohol at work. Courts have found a sufficient link between the drinking and the accidents to make the collisions neither startling nor unusual, and thus foreseeable under respondeat superior. For example, in Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792 [235 Cal.Rptr. 641] (Childers), an employee got into an accident on the way home after drinking at work with a supervisor’s permission. The appellate court found the accident was foreseeable, explaining “ ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer. [Citation.]”’ (Id. at pp. 803-804, italics omitted.) Applying such principles, Harris, supra, 120 Cal.App.3d 157, found a “sufficient connection” between an employer’s holiday party and an employee’s auto accident “to justify holding the employer financially responsible for the injuries occasioned by the employee’s accident. Although the accident occurred away from the employer’s premises and presumably after work, we believe that the operable factors giving rise to the subsequent accident at least make a prima facie showing that the accident occurred in the course of [the employee’s] employment . . . .” (Id. at p. 164, italics added and fn. omitted.)

Moreover, as demonstrated by the italicized language in Harris imposing liability for an after-hours accident away from the jobsite, liability follows the employee until the work-spawned risk dissipates. The Childers court explained, “We conclude . . . respondeat superior liability is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself at times and locations remote from the ordinary workplace. To pick an obvious hypothetical example, suppose an employee manufacturing radioactive fuel becomes contaminated on the job and later contaminates nonemployees while playing basketball at a gym far from the jobsite, causing them injury. In this example, plainly the risk of injury is created by the enterprise; we have no doubt the enterprise should fairly bear the cost of injury. So long as the risk *806is created within the scope of the employee’s employment, the scope of employment must follow the risk so long as it acts proximately to cause injury.” (Childers, supra, 190 Cal.App.3d at pp. 804-805, italics added.)

Hernandez suffered pesticide exposure at work to which she attributed illness and impaired driving.3 That an employee might not be fit to drive after breathing lingering pesticide fumes for several hours is not such a startling or unusual event that we find a car accident on Hernandez’s commute home was unforeseeable. Hence, the trial court erred in finding the going-and-coming rule barred appellant’s claim of respondeat superior. Indeed, the going-and-coming rule was an analytical distraction. The thrust of appellant’s claim for vicarious liability was that Hernandez was an “instrumentality of danger” because of what had happened to her at work. (Cf. Childers, supra, 190 Cal.App.3d at pp. 804-805 [describing an employer’s vicarious liability for an employee who exposed the public to contamination acquired on the job].) Although Hernandez’s decision to drive home gave respondent an opening to raise the going-and-coming rule, the rule did not apply because her decision was a fortuity that must not obscure appellant’s central claim that Hernandez’s job had contributed to the accident. Thus, summary judgment for respondent was improper.

Respondent argues the foreseeability exception to the going-and-coming rule does not apply because it was not negligent. In support, respondent points to the absence of evidence that it contributed in any negligent manner to the underlying pesticide exposure. It also cites the uncontested fact that its supervisors diligently inquired into Hernandez’s ability to drive before she went home. Respondent contrasts its seeming blamelessness with decisions such as Childers and Harris imposing vicarious liability for drunken employees, suggesting liability attached to the employer in those decisions in part because the employer bore some responsibility for the employee’s intoxication. Whatever merit respondent’s argument might have in defeating appellant’s theory that respondent was directly liable to her for ordinary negligence—a theory we need not address (see fn. 2, ante)—it does not apply to vicarious liability. Foreseeability of a risk arising from or connected to work requires no more than a causal connection between a work-related event and the employee’s subsequent act causing injury. (Childers, supra, 190 Cal.App.3d at pp. 803-804.) Here, evidence of such a connection existed.

Finally, respondent contends appellant did not raise her foreseeability argument below, thus waiving it. We disagree. Appellant argued to the trial *807court that the going-and-coming rule did not apply because Hernandez was driving home for a work-related illness and thus not engaged in her ordinary daily commute. Consistent with her argument, appellant moved for summary adjudication (which the court denied) that her going home ill from pesticide exposure was within the course and scope of her employment. Thus, whether or not the label (“foreseeability”) that appellant attaches to her argument might be new, her key point is not; the going-and-coming rule did not apply. Accordingly, we find no waiver.

Disposition

The judgment is reversed and the court is directed to enter a new and different order denying respondent Minimed, Inc.’s motion for summary judgment. Appellant to recover her costs on appeal.

Cooper, P. J., and Boland, J., concurred.

McKAY, Circuit Judge.

Appellant filed a claim in the district court for damages against Defendant Welch 1 based on negligence after Appellant sustained injuries when the car that he was driving was struck by a car driven by Mr. Welch. In his complaint, Appellant alleged that Mr. Welch, an Oseo employee, was acting within the scope of his employ*1051ment at the time of the accident. Appellant sought to hold Oseo liable for damages under a theory of respondeat superior.

Appellant’s version of the facts on summary judgment are as follows. At the time of the accident, Mr. Welch was an Oseo store manager. He was driving from his store to the Oseo District Office to deliver football tickets for that weekend which were obtained from a vendor for distribution among Oseo managers. Mr. Welch frequently made trips for Oseo using his own vehicle. During his drive, Mr. Welch remembered that he needed to have some routine maintenance done on his car. He made a spur of the moment decision to pull into a service station for an estimate. Mr. Welch allegedly failed to yield in making a left turn and struck Appellant’s car.

On cross-motions for summary judgment, the district court granted Osco’s motion and denied Appellant’s motion, holding that no reasonable jury could conclude that Mr. Welch was acting within the scope of his employment. The district court did not specifically decide whether the trip to the District Office was within Mr. Welch’s scope of employment. Instead, the district court held that it did not matter because, even if the trip had been within the scope of Mr. Welch’s employment, the attempted stop at the service station was not. The district court also denied Appellant’s motion to reconsider or, in the alternative, to certify a question to the Kansas Supreme Court.

After Oseo was dismissed from the case, a bench trial was held on the issue of damages. Defendant Welch did not present evidence or cross-examine witnesses. The court entered judgment against Mr. Welch in the amount of $1,014,503.70, “questioning] whether it would arrive at the same result in a true adversary proceeding....” ApltApp., Vol. II, at 349.

The specific issue we are asked to address on appeal is whether the district court erred in granting summary judgment to Appellee Oseo on whether Mr. Welch was within the scope of his employment when he turned into the service station for non-emergency maintenance on his car while driving to deliver a vendor gift to the District Office. We review “the grant of summary judgment de novo, applying the same standards used by the district court.” Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). A motion for summary judgment is granted when the record demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56.

Pursuant to Kansas law, an employer is only liable for injuries caused by an employee acting within the scope of his employment. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 520 P.2d 1296, 1301-02 (1974). The following Kansas jury instruction is an accurate illustration of Kansas scope of employment law:

An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed], or when [he] is doing anything which is reasonably incidental to [his employment]. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer! ], but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it.

Pattern Instructions Kansas 3d 107.06; Williams, 520 P.2d at 1300. Unfortunately, there are no Kansas cases directly on point to help define the parameters of Kansas law. Therefore, in its grant of summary judgment for Osco, the district *1052court relied substantially on two cases from other jurisdictions.

In Carroll ¶. Western Union Telegraph Co., 170 Wash. 600, 17 P.2d 49 (1932), a motorcycle messenger, not then being busy, informed his superior that he needed to get a part for his motorcycle. Given permission, the messenger then proceeded on his motorcycle a considerable and indirect distance to complete his personal errand. He was not sent on an errand for his employer; he was excused temporarily from his post for his own private advantage. However, there was no deduction in pay. The accident occurred as the messenger was returning from his errand to go back to work. The court held that the employer was not liable for the tort of his employee because the messenger had been specifically excused from his job duties to run a personal errand. Id. at 50. The court specifically noted that cases where the employee was on an errand for the employer from which he deviated for personal reasons “have no bearing here, because [the messenger] was not sent out on any errand from the performance of which he deviated.” Id.

Similarly, in Schofield v. Cox Enterprises, Inc., 212 Ga.App. 354, 441 S.E.2d 693 (1994), a newspaper delivery person worked a morning and an afternoon shift, and the time between the shifts was personal, unpaid time. The delivery person had some unsold papers to return to his employer. Though not required to return the papers immediately, the employee planned to return the papers between shifts after he had his car’s alignment fixed. The accident occurred at the service station when the car driven by the delivery person failed to stop and pinned a repair shop worker against the wall which resulted in the worker’s death. The court held that the employer was not liable for the tort committed by his employee.

We note that though the district court relied heavily on Carroll and Schofield, neither of these cases is from Kansas and, more importantly, neither is similar enough to ours on the facts. The district court focused on the nature of the errand of non-emergency maintenance to a vehicle used for work. However, in our case, Mr. Welch was arguably delivering tickets for Oseo when he attempted to make a turn into a service station. In Carroll and Schofield, the employees were not on business errands from which they deviated for personal reasons. In Carroll, the messenger was on a lengthy personal errand across town that had nothing to do with his employment. In Schofield, the delivery person was not even working a shift — it was his personal, unpaid time. Therefore, neither of these cases in which off-duty employees committed torts while seeking to repafr a vehicle used for work is helpful to our analysis.

Due to the absence of binding authority, Appellant urges us to decide that Kansas would adopt the “slight deviation” rule which it already follows in worker’s compensation cases. Approximately half of the states2, supported by American *1053 Jurisprudence, have applied some form of the slight deviation analysis in third-party liability cases. See 27 Am.Jur.2d Employment Relationship § 466 (2000). Pursuant to this analysis,

it must be determined whether the employee was on a frolic or a detour; the latter is a deviation that is sufficiently related to the employment to fall within its scope, while the former is the pursuit of the employee’s personal business as a substantial deviation from or an abandonment of the employment. If an employee wholly abandons, even temporarily, the employer’s business for personal reasons, the act is not within the scope of employment, and the employer is not liable under respondeat superior for the employee’s conduct during that lapse. A diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer, unless the very character of the diversion severs the employment relationship. Acts that are necessary to the comfort, convenience, health, and welfare of the employee while at work are not outside the scope of employment, if the conduct is not a substantial deviation from the duties of employment.

Id. (footnotes omitted). Personal acts that are not far removed in time, distance, or purpose are deemed to be incidental to the employment. See, e.g., Restatement (See-ond) of Agency § 237 (1958). Our research has not revealed a single jurisdiction that has considered and rejected slight deviation analysis in third-party liability cases. Kansas has not had the occasion to consider the slight deviation analysis in such cases. However, it has adopted the analysis in worker’s compensation case's. We must therefore determine whether Kansas would adopt the slight deviation analysis in cases such as ours to inform our judgment.

Appellant asserts that the Kansas Supreme Court would adopt and apply the slight deviation rule to find that Mr. Welch was within the scope of his employment with Oseo when attempting the turn for an estimate on vehicle maintenance. Appellant further argues that the Kansas pattern jury instruction, infra, is itself a rejection of a bright-line rule and demands that an employee’s acts be put into context in order to determine what is “reasonably incidental” to employment and what “conduct should have been fairly foreseen.” Slight deviation analysis provides a framework for such an analysis. A slight deviation might be considered reasonably incidental to employment while a substantial deviation would not.

We agree that the Kansas jury instruction is compatible with slight deviation analysis.3 Of the jurisdictions that have *1054adopted slight deviation analysis, several have jury instructions that are substantially similar to Kansas’ jury instruction. For example, Mississippi’s jury instruction provides:

An [employee] is acting within the scope of his [employment] when he is performing services or work for which he has been hired or engaged, or when he is doing something reasonably incidental to such work. The question is not necessarily whether such conduct was expressly authorized or forbidden, but rather whether it could have been fairly foreseen from the nature of his work and the duties relating to it, and whether he acted, at least in part, in an effort to serve his employer.

Miss. Prac. Model Jury Instr. Civil § 4:4 (2002); see also Ark. Model Jury Instr., Civil AMI 703 (4th ed.1999); 4 Minn. Prac. Jury Instr. Guides — Civil 30.15 (4th ed.1999); N.Y. Pattern Jury Instr. — Civil 2:235 (2002). Mississippi’s instruction is virtually identical to the Kansas instruction, and it coexists with slight deviation analysis. Colotta v. Phillips, 226 Miss. 870, 85 So.2d 574 (1956).

Unfortunately, Kansas law does not provide specific guidance in the instant case. The only guidance is from a Kansas jury instruction. To make a specific and detailed list of all personal stops that are and are not acceptable would be contrary to the standard expressed in the jury instruction which embodies Kansas law. Application of the slight deviation analysis allows for more flexibility and accuracy in the application of the law to each fact scenario. The Kansas pattern jury instruction, similar to the instructions cited above from other jurisdictions, does not express a bright-line rule but instead illustrates a type of slight deviation rule which requires a determination of what is reasonably incidental to employment and what conduct should have been fairly foreseen.

Additionally, Kansas has already adopted the slight deviation analysis in worker’s compensation cases. We agree with Appellee that, even though an employee’s acts may be deemed within the scope of his employment under the Kansas Workers Compensation Act, such acts are not necessarily within the scope of his employment where the issue is whether his employer is vicariously liable to a third party. We also agree that the public policies behind worker’s compensation and third party liability cases are different. However, it supports our analysis that Kansas has considered and adopted slight deviation analysis in at least one area of the law.

Applying slight deviation analysis to our case, we think that the question of whether the turn was within Mr. Welch’s scope of employment is for the jury to decide. Whether an employee is acting within the scope of his employment is generally a jury question. Birkner v. Salt Lake County, 771 P.2d 1053, 1057 *1055(Utah 1989). “[Wjhenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of his master’s business or within the scope of his employment,” it is a jury question. Id. (internal quotations and citations omitted); see also Bacon v. News-Press & Gazette Co., 188 Ga.App. 703, 373 S.E.2d 797, 799 (1988) (quoting Jump v. Anderson, 58 Ga. App. 126, 197 S.E. 644 (1938)) (“[WJhether or not the servant at the time of an injury to another was acting ... in the scope of his employment is for determination by the jury, except in plain and indisputable cases.”). The rule has been stated that

[wJhether there has been a deviation so material or substantial as to constitute a complete departure is usually a question of fact. In some cases the deviation may be so marked, and in others so slight relatively, that the court can say that no conclusion other than that the act was or was not a departure could reasonably be supported; while in still others the deviation may be so uncertain in extent and degree in view of the facts and circumstances as to make the question of what inferences should be drawn from the evidence properly one for the jury.

Kruse v. White Bros., 81 Cal.App. 86, 253 P. 178, 181 (1927) (citing Healey v. Cockrill, 133 Ark. 327, 202 S.W. 229, 230 (1918)); see also Pyne v. Witmer, 129 Ill.2d 351, 135 Ill.Dec. 557, 543 N.E.2d 1304, 1309 (1989) (“[WJhere a deviation is uncertain in extent and degree, or where the surrounding facts and circumstances leave room for legitimate inferences as to whether, despite the deviation, the employee was still engaged in the employer’s business, the question is for the jury.”).

Mindful of the volume of authority which indicates that scope of employment is generally a jury question, we turn to the parameters of slight deviation analysis. The scope of slight deviation analysis has been defined as follows:

To exonerate the master, however, it is essential that the deviation be for purposes entirely personal to the servant (39 Corp. Jur., p. 1297, Master and Servant, §§ 1493, 1494); and a deviation will be regarded as immaterial if the latter combines his own business with that of the master or attends to both at substantially the same time (Brimberry v. Dudfield Lumber Co., 183 Cal. 454, 191 P. 894). A mere deviation from the strict course of his duty does not release the master from liability. In order to have that effect it must be so substantial as to amount to an entire departure. 39 Corp. Jur. p. 1297, Master and Servant, § 1493.

Kruse, 253 P. at 181; see also Phillips Petroleum Co. v. Ward, 181 Okla. 462, 74 P.2d 614, 617 (1937). Additionally,

[a] mere deviation by an employee from the strict course of his duty does not release his employer from liability. An employee does not cease to be acting within the course of his employment because of an incidental personal act, or by slight deflections for a personal or private purpose, if his main purpose is still to carry on the business of his employer. Such deviations which do not amount to a turning aside completely from the employer’s business, so as to be inconsistent with its pursuit, are often reasonably expected and the employer’s assent may be fairly assumed. In many instances they are the mingling of a personal purpose with the pursuit of the employer’s business. In order to release an employer from liability, the deviation must be so material or substantial as to amount to an entire departure.

De Mirjian v. Ideal Heating Corp., 129 Cal.App.2d 758, 278 P.2d 114, 118 (1954); *1056 see also Pyne, 135 Ill.Dec. 557, 543 N.E.2d at 1309. Dual purpose ventures may be considered within the scope of an employee’s employment. Felix v. Asai, 192 Cal. App.3d 926, 237 Cal.Rptr. 718, 722 (1987) (“Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will still be acting within the scope of his employment.”).

Appellant argues that Mr. Welch was acting within the scope of his employment and made only a slight deviation from his business-related trip at the time the accident occurred. Several factors have been identified as helpful in determining whether an employee has embarked on a slight or substantial deviation. They include: (1) the employee’s intent; (2) the nature, time, and place of the deviation; (3) the time consumed in the deviation; (4) the work for which the employee was hired; (5) the incidental acts reasonably expected by the employer; and (6) the freedom allowed the employee in performing his job responsibilities. Felix, 237 Cal.Rptr. at 722.

Applying these factors to our case, and viewing the facts in a light most favorable to Appellant, Mr. Welch intended to get an estimate for non-emergency maintenance on a car used for business. In terms of purpose, it was maintenance to a vehicle used regularly in performing his job duties for Oseo. While his stop was not for emergency maintenance for his car, his stop for routine maintenance on a car used for business purposes could be considered enough of a mixed purpose by a jury to keep him within the scope of his employment with Oseo.

In terms of time and place, the accident occurred minutes and feet from the direct route to Osco’s District Office. Mr. Welch was simply attempting to turn from the most direct route into a service station right off the main road. At the time of the accident, he had not entered the service station. He was technically still on the road en route to the District Office. Because the accident occurred on this road, not at the service station, a jury could decide that Mr. Welch had not yet abandoned his employment for a personal errand at the time of the accident. It is unclear how long the estimate would have taken. However, we do know that if he had deviated at the time of the accident, the length of the deviation was only a few minutes or less.

Mr. Welch was an Oseo store manager. A jury could find that an employee in a managerial position was given some freedom to attend to certain personal needs throughout the day. It is possible that Oseo reasonably expected certain incidental acts to take place, especially when a store manager was en route from one store to another or from a store to the District Office.

Our case is similar to Van Vranken v. Fence-Craft, 91 Idaho 742, 430 P.2d 488 (1967), where the employee deviated from his direct route to drop off a prescription for his wife. The court held that “a proportionately slight or expectable deviation will not relieve an employer of vicarious liability, and except where the deviation is gross, the jury should determine the scope of employment question as one of fact.” Id. at 495. A reasonable jury could decide that “deviation from the direct route was [something] which the employer might reasonably be deemed to have anticipated and assented to, and was not such as to amount to an abandonment of the employment.” Kruse, 253 P. at 181.

Assuming without deciding that Mr. Welch was acting within the scope of his employment in delivering the tickets to the District Office, we hold that a reasonable jury could conclude that he was acting *1057within the scope of his employment when he attempted to turn into the service station. A reasonable jury could decide that Mr. Welch’s attempted deviation from his direct route to obtain non-emergency vehicle maintenance was something which Oseo “might reasonably be deemed to have anticipated and assented to, and was not such as to amount to an abandonment of the employment.” Id.

The district court did not specifically decide whether Mr. Welch was in the scope of his employment in making the trip from his store to the District Office. It stated:

[Wlhile the court would conclude from the record that genuine issues of material fact exist with respect to whether defendant Welch’s delivery of the Chiefs tickets was within the scope of his employment, the court need not address this issue because it concludes that, as a matter of law, defendant Welch’s attempted stop at the service station for routine vehicle maintenance was outside the scope of his employment.

ApltApp., Vol. II, at 311. We agree with the district court that summary judgment is inappropriate on this issue. Therefore, this issue must be remanded for trial as well.

We further hold that, in the event that Appellee is found hable by a jury, it will have the opportunity to contest damages as it was not involved in the damages hearing.

REVERSED and REMANDED.

*1225REYNOLDS, Judge:

Mrs. C. L. Murrell, plaintiff in the trial court, appeals the order sustaining the motion for summary judgment in favor of co-defendant Oklahoma Publishing Company (appellee), in a suit for damages resulting from an alleged assault and battery by co-defendant Bruce Goertz.

On August 27, 1976, Bruce Goertz was making monthly collections for the delivery of appellant’s morning newspaper, the Daily Oklahoman, which is published by appel-lee. Appellant questioned Goertz concerning damage to appellant’s screen door caused by the newspaper carrier throwing the newspaper into it. An argument ensued culminating in appellant slapping Goertz who in turn struck appellant. As a result thereof, appellant was allegedly injured, requiring medical treatment and subsequent hospitalization. Appellant filed suit in the District Court of Oklahoma County seeking a total of $52,500 for past and future medical expenses, pain and suffering, and exemplary damages.

Appellant’s petition contends that Goertz was a servant of appellee either by agreement between the co-defendants, or by ap-pellee creating the apparent belief in appellant that Goertz was a servant by allowing Goertz to deliver the paper, advertise that product, and to collect for accounts due. Both appellee and Goertz answered denying that Goertz was appellee’s servant.

Pursuant to District Court Rule 13, appel-lee filed a motion for summary judgment which was sustained by the trial court. The trial court then denied appellant’s motion for new trial and this appeal was perfected.

A summary judgment is properly granted only where the pleadings, exhibits, admissions, and depositions present no substantial controversy as to material facts or issues. Weeks v. Wedgewood Village, Inc., Okl., 554 P.2d 780 (1976). The movant must show that there is no substantial controversy as to the material facts or issues. Once the movant has accomplished this, the opponent then has the burden of showing that evidence is available that would justify a trial of the issue. Runyon v. Reid, Okl., 510 P.2d 943 (1973).

The line of demarcation between an independent contractor and a servant is not clearly drawn. An independent contractor is one who engages to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof. Miller Construction Co. v. Wenhold, Okl., 458 P.2d 637 (1969). The parties agree that the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work. Dodd v. Rush, Okl., 406 P.2d 261 (1965).

To determine if a person is a servant or an independent contractor, one must look to the facts of each case. Hartwig v. Benham Engineering Co., Okl.App., 519 P.2d 932 (1974). If the evidence concerning the status of a party defendant is reasonably susceptible of but a single inference, the question is one purely to be decided by the court. Coe v. Esau, Okl., 377 P.2d 815 (1963). Where the defendant’s status forms a material issue in the case and the facts bearing on that issue are disputed, or where there is room for reasonable difference of opinion as to the proper inference to be drawn from the known facts, the issue is for the jury under proper instructions by the court, Morian v. Lollis, Okl., 371 P.2d 473 (1962), and it is error to withhold the issue from their determination. Texaco, Inc. v. Layton, Okl., 395 P.2d 393 (1964).

Appellant contends that the distribution of papers and the collection of money therefor is an integral part of appellee’s business. Appellant cites the following factors as indicative of the high degree of control appellee possesses over the physical details of the work: ultimate control over *1226the territorial boundaries of Goertz’s route; appellee set a standard policy that paper deliveries be completed by 6 a. m.; appellee set policy that all papers were to be held by rubber bands; customers who were missed by the carrier called appellee to report it; complaints concerning the service were lodged with appellee; and new subscribers called appellee to initiate newspaper service.

Appellee submits that the affidavit of Russell Westbrook and Goertz’s deposition reveal that Goertz had no contact with ap-pellee. Westbrook stated that he was an independent newspaper distributor for ap-pellee and that he employed Bruce Goertz as an independent carrier salesman. West-brook further stated that Goertz was responsible only to him for the delivery of the newspapers and was in no way under the supervision, dominion, and control of appel-lee. By the terms of Westbrook’s contract, he was an independent contractor and likewise not subject to the supervision, dominion, and control of appellee as to the manner and method of performing his job. Ap-pellee further cites the statements of West-brook and Goertz that Goertz was collecting money for Westbrook at the time of the incident with appellant, and that appellee received money only from Westbrook.

From a review of the record we conclude that the evidence is reasonably susceptible of but one inference. Bruce Goertz was hired as an independent carrier salesman by his friend Russell Westbrook, who was himself an independent contractor. Appellee had no input into the decision to hire Goertz and had no knowledge of his employment. Goertz had no direct contract with appellee in his business operations. While appellee established certain policies and standards to which all distributors and carriers were to adhere, such policies and standards do not rise to that level of supervision, dominion, and control over Goertz’s day to day activities as to make him appellee’s servant.

AFFIRMED.

ROMANG, P. J., and BOX, J., concur.

TRAYNOR, C. J.

Plaintiff brought this action to recover damages for injuries to her person and property incurred in an automobile accident. She appeals from an adverse judgment and from an order denying her motion for judgment notwithstanding the verdict on the issue of liability.

*444Plaintiff stopped her car in a left-turn lane to wait for a traffic signal to change. Defendant turned into the left-turn lane behind plaintiff and stepped on her brake pedal. Defendant ’s brakes failed, and a collision ensued.

Defendant neither knew nor had reason to know that her brakes were defective until they failed. The failure was caused by a rupture in a hydraulic hose that gave no warning to defendant of its impending occurrence. Defendant had the brakes completely overhauled by Peter Evanchik of Pete’s Chevron Station about three months before the accident. Later, about two weeks before the accident, the car was involved in another collision, and defendant’s husband had Evanchik inspect and repair it. Nothing was done to the brakes at that time. Defendant’s expert witness testified that the brakes failed because of a hole in the hydraulic hose that was caused by rubbing of the hose against the right front wheel. The rubbing resulted from faulty installation of the hose at the time the brakes were overhauled. A qualified person inspecting the brakes before they failed would have detected the faulty installation and the evidence of the rubbing.

At the time of the accident section 26300 of the Vehicle Code provided that every motor vehicle “shall be equipped with brakes adequate to control the movement of the vehicle and to stop and hold the vehicle,” and section 26453 provided that all “Brakes and component parts thereof shall be maintained ... in good working order.’’(See also Veh. Code, §26454.) A defendant's failure to comply with these provisions gives rise to a presumption of negligence that he may rebut by proof ‘‘ that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” (Alarid v. Vanier (1958) 50 Cal.2d 617, 624 [327 P.2d 897], see also cases cited on p. 622; Evid. Code, § 669, added by Stats. 1967, ch. 650, § 1.)

Defendant offered sufficient evidence to rebut the presumption that she was negligent. The brakes had been overhauled three months before the accident; the car was inspected for damage and repaired after another accident in the interim; and the brakes gave no warning to defendant of their impending failure. Moreover, she was not negligent in failing to discover the faulty installation of or the growing damage to the hose, for those defects would be apparent only to a mechanic.

Plaintiff contends, however, that proof that defendant was *445not herself negligent should not absolve her from liability for the damage caused by the failure of her brakes. She contends that the court should reconsider the Alarid decision and hold that a motorist is strictly liable for damage caused by a brake failure or hold that the duty to exercise reasonable care to maintain adequate brakes is nondelegable.

We adhere to the holding of the Alarid case that a violation of a safety provision of the Vehicle Code does not make the violator strictly liable for damage caused by the violation. We are aware, however, of the growing dissatisfaction with the law of negligence as an effective and appropriate means for governing compensation for the increasingly serious harms caused by automobiles. (See Ehrenzweig, Negligence Without Fault (1951); Keeton and O’Connell, Basic Protection for the Traffic Victim (1965); Franklin, Replacing the Negligence Lottery (1967) 53 Va.L.Rev. 774; Keeton, Is There a Place for Negligence in Modern Tort Law? (1967) 53 Va.L.Rev. 886; cf. Urie v. Thompson (1949) 337 U.S. 163,196 [93 L.Ed. 1282, 1306, 69 S.Ct. 1018, 11 A.L.R.2d 252] (concurring opinion of Frankfurter, J.).) If the problem of fixing responsibility under a system of strict liability were as uncomplicated as it seems to be in this case, a court might be tempted to follow the lead of decisions recognizing strict liability in other circumstances. (See dissenting opinion of Shenk, J., in Alarid v. Vanier, supra, 50 Cal.2d 617, 629.)

In few cases, however, are the facts likely to be as simple as they are here. In the next case an accident might be caused by the combination of a brake failure and a stoplight failure under circumstances that would have permitted effective use of an emergency handbrake had the following motorist been properly alerted by the stoplight required by the Vehicle Code. (Veh. Code, § 24603.) In another case, a pedestrian might stumble and fall on a dangerous and defective pavement causing a motorist having the right of way to drive across the center line of the highway and strike a speeding oncoming car. Who is to be strictly liable to whom in such cases? However imperfectly it operates, the law of negligence allocates the risks and determines who shall or shall not be compensated when persons simultaneously engaged in the common enterprise of using the streets and highways have accidents. It does so by invoking familiar rules with respect to the reasonably prudent man, duty, proximate cause, contributory negligence, last clear chance, the effect of statutory violations, and imminent peril. A rule of strict liability would *446■require its own attendant coterie of rules to allocate risk and govern compensation among co-users of the streets and highways.

■Unless the ratio decidendi of a decision making an abrupt change in the law can point with reasonable certainty to the solution of similar cases, it cannot help but create uncertainty in the area of its concern. In many situations the problems caused by such uncertainty will not outweigh the considerations "that dictate change as the appropriate common law development. To invoke a rule of strict liability on users of the streets and highways, however, without also establishing in substantial detail how the new rule should operate would only contribute confusion to the automobile accident problem. Settlement and claims adjustment procedures would become chaotic until the new rules were worked out on a case-by-case basis, and the hardships of delayed compensation would be seriously intensified. Only the Legislature, if it deems it wise tó do so, can avoid such difficulties by enacting a comprehensive plan for the compensation of automobile accident victims in place of or in addition to the law of negligence. • '

It does not follow, however, that the duty to exercise reasonable care to maintain brakes so that they comply with the provisions of the Vehicle Code can be delegated. This issue was not raised or considered in the Alarid case. Although there is language in Ponce v. Black (1964) 224 Cal.App.2d 159, 163 [36 Cal.Rptr. 419], suggesting that the duty is at least in part nondelegable, we doubt that the court in that case was addressing itself to that issue. We believe, however, that the law governing nondelegable duties dictates imposing such a duty here.

Unlike strict liability, a nondelegable duty operates, not as a substitute for liability based on negligence, but to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor. To the extent that recognition of nondelegable duties tends to insure that there will be a financially responsible defendant available to compensate for the negligent harms caused by that defendant’s activity, it ameliorates the need for strict liability to secure compensation.

We recently reviewed the law of nondelegable duties in Van Arsdale v. Hollinger (1968) .68 Cal.2d 245, 250-255 *447[66 Cal.Rptr. 20, 437 P.2d 508], and there is no need to reiterate that discussion here. It is enough to point out that we have found nondelegable duties in a wide variety of situations and have recognized that the rules set forth in the Restatement of Torts with respect to such duties are generally in accord with California law. Such duties include those imposed by a public authority as a condition of granting a franchise (Eli v. Murphy (1952) 39 Cal.2d 598, 599 [248 P.2d 756]; Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 604 [110 P.2d 1044]; Kirk v. Santa Barbara Ice Co. (1910) 157 Cal. 591, 593 [108 P. 509]; Colgrove v. Smith (1894) 102 Cal. 220, 223-224 [36 P. 411, 27 L.R.A. 590]; Rest.2d Torts (1965) § 428); the duty of a condemning agent to protect a severed parcel from damage (Los Angeles County Flood Control Dist. v. Southern Cal. Bldg. & Loan Assn. (1961) 188 Cal.App.2d 850, 854 [10 Cal.Rptr. 811]); the duty of a general contractor to construct a building safely (Dow v. Molly Mfg. Co. (1958) 49 Cal.2d 720, 726-727 [321 P.2d 736]); the duty to exercise due care when an “. . . independent contractor is employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken” (Courtell v. McEachen (1959) 51 Cal.2d 448, 457 [334 P.2d 870]; Van Arsdale v. Hollinger, supra, 68 Cal.2d 245, 254; Ambriz v. Petrolane Ltd. (1957) 49 Cal.2d 470, 481 [319 P.2d 1] ; Rest.2d Torts (1965) §416); the duty of landowners to maintain their property in a reasonably safe condition (Knell v. Morris (1952) 39 Cal.2d 450, 456 [247 P.2d 352]; Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256 [143 P.2d 929]; Rest.2d Torts (1965) § 422) and to comply with applicable safety ordinances (Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 423 [218 P.2d 17]; Longway v. McCall (1960) 181 Cal.App.2d 723, 731 [5 Cal.Rptr. 818]); and the duty of employers and suppliers to comply with the safety provisions of the Labor Code (Alber v. Owens (1967) 66 Cal. 2d 790, 792 [59 Cal.Rptr. 117, 427 P.2d 781]; DiMuro v. Masterson Trusafe Steel Scaffold Co. (1961) 193 Cal.App.2d 784, 792 [14 Cal.Rptr. 551]).

Section 423 of the Restatement Second of Torts provides that ‘ ‘ One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully . . . maintained, and who employs an independent contractor to . . . maintain such instrumentalities, is subject to the same liability for physical *448harm caused by the negligence of the contractor in . . . maintaining such instrumentalities as though the employer had himself done the work of . . . maintenance. ’ ’ Section 424 provides that “One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions. ’ ’ Both of these sections point to a nondelegable duty in this case. The statutory provisions regulating the maintenance and equipment of automobiles constitute express legislative recognition of the fact that improperly maintained motor vehicles threaten “a grave risk of serious bodily harm or death.” The responsibility for minimizing that risk or compensating for the failure to do so properly rests with the person who owns and operates the vehicle. He is the party primarily to be benefited by its use; he selects the contractor and is free to insist upon one who is financially responsible and to demand indemnity from him; the cost of Ms liability insurance that distributes the risk is properly attributable to Ms activities; and the discharge of the duty to exercise reasonable care in the maintenance of his vehicle is of the utmost importance to the public. (See Van Arsdale v. Hollinger, supra, 68 Cal.2d 245, 253, and authorities cited.)

In the present case it is undisputed that the accident was caused by a failure of defendant’s brakes that resulted from her independent contractor’s negligence in overhauling or in thereafter inspecting the brakes. Since her duty to maintain her brakes in compliance with the provisions of the Vehicle Code is nondelegable, the fact that the brake failure was the result of her independent contractor’s negligence is no defense.

The judgment and the order denying the motion for judgment notwithstanding the verdict on the issue of liability are reversed and the case is remanded to the trial court for a new trial on the issue of damages only.

Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

McCOMB, J.

I dissent. I would affirm the judgment for the reasons expressed by Mr. Presiding Justice Molinari in. the opinion prepared by him for the Court of Appeal in Maloney v. Rath (Cal.App.) 65 Cal.Rptr. 386.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Justice:

This case is before the court on a petition for a writ of certiorari to the Utah Court of Appeals. Plaintiffs Jeff Christensen and Kyle James Fausett claim that the court of appeals erred when it concluded that defendant Burns International Security Services (“Burns”) was not hable under the doctrine of respondeat superior for the actions of its employee, Gloria Swenson. The court of appeals determined that Swenson was acting outside the scope of her employment at the time of her automobile accident with Christensen and Fausett and therefore affirmed the trial court’s grant of summary judgment. Christensen v. Burns Int’l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992). We reverse.

Burns provides security services for the Geneva Steel Plant (“Geneva”) in Orem, Utah. Burns employed Swenson as a security guard in June 1988. On the day of the accident, July 26, 1988, Swenson was assigned to guard duty at Gate 4, the northeast entrance to the Geneva property. Security guards at Gate 4 worked eight-hour continuous shifts, with no scheduled breaks. However, employees were permitted to take ten-to fifteen-minute unscheduled lunch and restroom breaks.

When taking their lunch breaks, Gate 4 guards generally ate a bag lunch but occasionally ordered take-out food from the sole restaurant within close physical proximity to Gate 4, the Frontier Cafe. The Frontier Cafe was located directly across the street from the Geneva plant, approximately 150 to 250 yards from Gate 4. The cafe’s menu was posted near the telephone at Gate 4. Aside from vending machines located within a nearby Geneva office budding, the Frontier Cafe provided the sole source of food accessible to Gate 4 guards within their ten- to fifteen-minute breaks. Indeed, the Frontier Cafe was the only restaurant in the immediate area. Whether they brought their lunches or ordered from the cafe, Gate 4 guards were expected to eat at their posts.

Shortly after 11:00 a.m. on the day of the accident, Swenson noticed a lull in the traffic at Gate 4 and decided to get a cup of soup from the Frontier Cafe. She placed a telephone order for the soup from Gate 4 and then drove her automobile to the cafe. She intended to pick up the soup and return to Gate 4 to eat at her post. She expected the round trip to take approximately ten to fifteen minutes, as permitted by Burns’ unscheduled break policy. On her return trip, however, she collided with plaintiffs’ motorcycle at a public intersection just outside Geneva’s *127property. Both Christensen and Fausett were injured.

Christensen and Fausett filed a negligence action against Swenson and Burns. After answering the complaint, Burns moved for summary judgment, claiming that it was not hable under the doctrine of respondeat superior because Swenson was not acting within the scope of her employment at the time of the accident. The trial court granted Bums’ motion, and Christensen and Fausett appealed. The court of appeals affirmed the trial court’s decision, concluding that reasonable minds could not disagree that Swenson was acting outside the scope of her employment at the time of the accident. Christensen, 844 P.2d at 995. We granted plaintiffs’ petition for certiorari.

Summary judgment is appropriate when the record indicates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1039 (Utah 1991). We review a trial court’s order granting summary judgment for correctness, according no deference to the trial court’s legal conclusions. Clover, 808 P.2d at 1039-40; Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989). In addition, we view ah relevant facts and all inferences arising from those facts in the light most favorable to the party opposing the motion. Clover, 808 P.2d at 1039. Should we conclude that a genuine issue of material fact exists, we must reverse the grant of summary judgment and remand for trial on that issue. Atlas Corp. v. Clovis Nat’l Bank, 737 P.2d 225, 229 (Utah 1989).

Under the doctrine of respondeat superior, employers are vicariously Hable for torts committed by employees while acting within the scope of their employment. Clover, 808 P.2d at 1040. Whether an employee is acting within the scope of her employment is ordinarily a question of fact. Id. The question must be submitted to the jury “ ‘whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of [the employer’s] business or within the scope of employment.’” Id. (quoting Carter v. Bessey, 97 Utah 427, 432, 93 P.2d 490, 493 (1939)). However, when the employee’s activity is so clearly within or outside the scope of employment that reasonable minds cannot differ, the court may decide the issue as a matter of law. Id.; Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).

In Birkner, we stated that acts faUing within the scope of employment are “ ‘those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.’ ” 771 P.2d at 1056 (quoting W. Page Keeton et ah, Prosser and Keeton on the Law of Torts § 70, at 502 (5th ed. 1984)). We articulated three criteria helpful in determining whether an employee is acting within or outside the scope of her employment. First, the employee’s conduct must be of the general kind the employee is hired to perform, that is, “the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being whoHy involved in a personal endeavor.” Id. at 1056-57. Second, the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Id. at 1057. Finally, “the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.” Id.

The court of appeals held that Swenson was not substantially within the ordinary spatial boundaries of her employment because the accident did not occur on Geneva property.1 Christensen, 844 P.2d at 995. *128Christensen and Fausett argue that the court of appeals erred in its application of the second criterion identified in Birkner. Burns responds that the court of appeals properly construed the second Birkner criterion in holding that Swenson was acting outside the scope of her employment at the time of the accident.

Because the court of appeals concluded that Swenson failed to satisfy the second Birkner criterion, it did not address the first and third criteria. See Christensen, 844 P.2d at 995. However, our review of the record indicates that reasonable minds could differ on all three criteria. Thus, to avoid a second summary judgment on remand, we address all three of the Birkner criteria.

The first Birkner criterion requires that the employee’s conduct be of the general kind the employee is hired to perform, that is, “the employee must be about the employer’s business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.” Birkner, 771 P.2d at 1056-57. Reasonable minds could differ as to whether Swenson was about Burns’ business when she was involved in the traffic accident between Gate 4 and the Frontier Cafe.

We base this conclusion on two disputed issues of material fact. First, Swenson claims that Burns employed her as a security guard to “see and be seen” on and around the Geneva plant. Thus, traveling the short distance to the Frontier Cafe in uniform arguably heightened the secure atmosphere that Bums sought to project. Burns, on the other hand, claims that Swenson was not hired to perform that function. Burns’ position is supported by the deposition of another security guard who stated that he considered lunch trips to the Frontier Cafe to be entirely personal in nature.

A second material issue of fact remains as to whether Burns tacitly sanctioned Gate 4 guards’ practice of obtaining lunch from the Frontier Cafe. Bums expected its Gate 4 guards to work eight-hour continuous shifts and to remain at their posts as much as possible. However, because Burns also recognized that the guards must at times eat meals and use the restroom, the company permitted them to take ten- to fifteen-minute paid breaks. The record indicates that Burns was aware that its employees occasionally traveled to the Frontier Cafe during these unscheduled breaks but had never disciplined them for doing so. Indeed, Swenson asserts that a menu from the Frontier Cafe was posted in plain view at Gate 4. Thus, reasonable minds could differ as to whether Burns tacitly sanctioned, or at least contemplated, that its guards would satisfy their need for nourishment by obtaining meals from the Frontier Cafe.

The second Birkner criterion states that the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Birkner, 771 P.2d at 1057. It is undisputed that Swenson’s action occurred within the hours of her employment. She was at her post and in uniform when she decided to take advantage of a lull in plant traffic to eat lunch.

With respect to spatial boundaries, we find that reasonable minds might differ as to whether Swenson was substantially within the ordinary spatial boundaries of her employment when traveling to and from the Frontier Cafe. Again, the court of appeals concluded that Swenson did not pass this criterion because the accident did not occur on Geneva property. Christensen, 844 P.2d at 995. While it is true that Swenson was not on Geneva property when the accident occurred, she was attempting to obtain lunch from a restaurant within the geographic area accessible during her ten- to fifteen-minute break. Given the other facts of this case, reasonable minds could differ as to whether Swenson’s trip to the Frontier Cafe fell *129substantially within the ordinary spatial boundaries of her employment.2

Furthermore, Burns could not point to specific orders barring guards from leaving the facility in their own vehicles to go to the Frontier Cafe on break, although two managers opined that such behavior was prohibited. This dispute alone presents a genuine issue of material fact. If guards were expressly forbidden to drive to the Frontier Cafe to pick up lunch during their break, a jury could find that Swenson was substantially outside the ordinary spatial boundaries of her employment; if they were not so forbidden, a jury might find her to have been acting substantially within the ordinary spatial boundaries of her employment.3

Under the third criterion of the Birkner test, “the employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.” Birkner, 771 P.2d at 1057. Applying this criterion to the instant case poses the question of whether Swenson’s trip to the Frontier Cafe was motivated, at least in part, by the purpose of serving Burns’ interest. Reasonable minds might also differ on this question.

First, two Burns managers admitted in their depositions that employee breaks benefit both the employee and the employer. Employees must occasionally eat meals and use the restroom, and employers receive the corresponding benefit of productive, satisfied employees. Reasonable minds could differ as to whether Swenson’s particular break fell into this mutual-benefit category.

Second, given the continuous-shift nature of the job and the comparatively brief breaks permitted, Burns’ break policy obviously placed a premium on speed and efficiency. Swenson claimed that traveling to the Frontier Cafe enabled her to obtain lunch within the allotted period and thus maximize the time spent at her post. In this respect, reasonable minds might conclude that Swen-son’s conduct was motivated, at least in part, by the purpose of serving Burns’ interest. Evidence indicating that Swenson tried to save time on her lunch break by phoning her order ahead, driving instead of walking, and attempting to return immediately to her post is also relevant in this regard.

In sum, we hold that reasonable minds could differ as to whether Swenson was acting within or outside the scope of her employment when she collided with plaintiffs’ motorcycle. Thus, summary judgment is inappropriate. We reverse and remand for further proceedings.

ZIMMERMAN, C.J., STEWART, Associate C.J., and GREENWOOD, Court of Appeals Judge, concur.

HOWE, Justice,

concurring:

I concur. I write to address the concerns of the court of appeals when, in affirming the summary judgment in favor of Burns, it wrote:

Holding otherwise would unduly expand the scope of employment. Every off-site location regularly patronized by an employee for personal purposes could potentially be considered within the ordinary spatial boundaries of the employment. Such a holding would also blur the rule that conduct occurring during an employee’s off-premises lunch hour is outside the scope of employment. See, e.g., 1 Arthur Larson, The Law of Workmen’s Compensation § 15.51 (1992).

*130 Christensen v. Burns Int’l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992).

Larson in his treatise recognizes exceptions to the general rule relied on by the court of appeals. One such exception is where the employee is paid during the time taken out for lunch or coffee and to suit the employer’s convenience, the employee rushes out to “get a quick bite to eat, and [hurries] back because of the pressure of work.... Here the very making of a lightning excursion for lunch is an effort expended in the employer’s interest to conserve his time.” 1 Arthur Larson, The Law of Workmen’s Compensation, § 15.52 (1993). Larson cites many cases where the exception was relied on. Only one need be mentioned. In Shoemaker v. Snow Crop Marketers Division of Clinton Foods, Inc., 74 Idaho 151, 258 P.2d 760 (1958), an employee was awarded compensation when he was injured while retrieving his packed lunch from a building adjoining his employer’s premises. He was on paid time and under orders of his employer to hurry back.

Although the case presently before the court is not a workers’ compensation case, I believe that this well-recognized exception may be applicable here, as the majority opinion correctly opines.

GREENWOOD, Court of Appeals Judge, sat to fill the vacancy on the court.

BURDICK, Justice.

This case requires the Court to consider whether a hospital can be found vicariously liable for the negligence of an independently contracted cell saver technician under Idaho’s doctrine of apparent agency. Appellants/Cross-Respondents Michael Anthony Jones, individually and as guardian ad litem for Rhys Alexander Jones and Moira Eibhlin Jones; Lynne Royer, as natural mother of Lori Jones, deceased; and Harold Bowers, as natural father of Lori Jones, deceased (collectively Appellants), appeal from the district court’s award of summary judgment in favor of Respondent/Cross-Appellant Healthsouth *111Treasure Valley Hospital (TVH). TVH cross-appeals from the district court’s denial of discretionary costs. We hold that a hospital may be found liable under Idaho’s doctrine of apparent authority for the negligence of independent personnel assigned by the hospital to perform support services. As such, we reverse the district court’s award of summary judgment and remand for a determination of whether Appellants presented sufficient evidence in support of their claim of apparent agency to survive summary judgment dismissal. Based on our ruling, we decline to consider TVH’s cross-appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sometime before August 2004, Lori Jones began seeing Dr. Timothy Doerr to treat her back problems. Dr. Doerr recommended that Mrs. Jones undergo lumbar spine surgery, which would require a two to three day recovery stay in the hospital. Dr. Doerr gave Mrs. Jones the option to have the surgery performed at either TVH or St. Alphonsus Regional Medical Center, but recommended TVH because the patient-to-staff ratio was lower and because TVH had a private chef. TVH is not a full service hospital, but rather a surgery center. Both Mrs. Jones and her husband, Michael Jones, visited TVH, and ultimately chose to have the surgery performed there.

Dr. Doerr elected to have Mrs. Jones’s blood “salvaged” during surgery, a process by which blood is collected from the patient intra-operatively and made available for rein-fusion into the patient’s body using a cell saver machine. Dr. Doerr issued an order for B & B Autotransfusion Services, Inc. to provide the cell saver machine and the cell saver technician for Mrs. Jones’s surgery. During the applicable period in question, B & B performed all autotransfusion services for TVH pursuant to an independent contractor agreement. Under this agreement, TVH was responsible for providing B & B with storage space for its cell saver machine as well as the autotransfusion supplies for surgery, and B & B was responsible for providing the cell saver technician and all disposable items related to autotranfusion. TVH paid B & B a flat fee for its services, and then either billed the patient or the insurance company directly for the autotransfusion services performed by B & B. Although the cell saver technicians were employees of B & B, TVH’s consent forms did not indicate their status as independent contractors. TVH furnished B & B’s cell saver technicians with hospital scrubs that all members of the surgical team were required to wear. These scrubs contained no logos or other identifying information distinguishing between hospital employees and independent contractors.

On August 2, 2004, Mrs. Jones underwent lumbar spine surgery at TVH. Jeri Kurtz, a certified cell saver technician employed by B & B, operated the cell saver machine used during the surgery. After Mrs. Jones’s blood had been collected, cleaned, and delivered into the reinfusion bag, Dr. Thomas Lark,1 the attending anesthesiologist, arranged for the reinfusion process to take place via gravity. Shortly thereafter, Dr. Lark was temporarily relieved by another anesthesiologist Dr. Deborah Jenkins.2 In order to speed up the reinfusion process, Dr. Jenkins placed a “pressure cuff’ around the bag. The reinfusion bag contained a written warning that applying a pressure cuff could lead to death. Both Ms. Kurtz and Dr. Lark noticed the cuff around the bag when they reentered the surgery room, but did nothing to remove it. The pressure cuff eventually squeezed the air remaining in the bag into Mrs. Jones’s body, causing her to sustain a fatal air embolism. Mrs. Jones was twenty-eight years old at the time of her death.

Appellants individually filed medical malpractice and wrongful death suits against various defendants, including TVH, claiming TVH was vicariously liable for the negligence of the two anesthesiologists and the cell sav*112er technician under the theory of apparent agency. Before trial, TVH moved for summary judgment, claiming Appellants had failed to establish through expert testimony that TVH had breached the local standard of care for a hospital as required in Idaho. Plaintiff Royer filed a cross-motion for partial summary judgment on the issue of apparent agency, and Plaintiffs Jones and Bowers joined in this argument. The district court determined that Idaho had not extended apparent agency liability to tort claims and, therefore, declined to grant Appellant’s motion for partial summary judgment. Accordingly, the district court granted TVH’s motion for summary judgment. Appellants appeal from this order.

II. STANDARD OF REVIEW

When reviewing an order for summary judgment, this Court applies the same standard of review as was used by the trial court in ruling on the motion for summary judgment. See Cristo Viene Pentecostal Church v. Paz, 144 Idaho 304, 307, 160 P.3d 743, 746 (2007). Summary judgment is proper “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). “If there is no genuine issue of material fact, only a question of law remains, over which this Court exercises free review.” Cristo, 144 Idaho at 307, 160 P.3d at 746 (quoting Infanger v. City of Salmon, 137 Idaho 45, 47, 44 P.3d 1100, 1102 (2002)).

“It is axiomatic that upon a motion for summary judgment the non-moving party may not rely upon its pleadings, but must come forward with evidence by way of affidavit or otherwise which contradicts the evidence submitted by the moving party, and which establishes the existence of a material issue of disputed fact.” Zehm v. Associated Logging Contractors, Inc., 116 Idaho 349, 350, 775 P.2d 1191, 1192 (1988). This Court liberally construes all disputed facts in favor of the nonmoving party, and all reasonable inferences drawn from the record will be drawn in favor of the nonmoving party. Cristo, 144 Idaho at 307, 160 P.3d at 746. If reasonable persons could reach differing conclusions or draw conflicting inferences from the evidence presented, then summary judgment is improper. McPheters v. Maile, 138 Idaho 391, 394, 64 P.3d 317, 320 (2003).

III. ANALYSIS

A. This Court previously extended the doctrine of apparent agency to tort claims in Bailey v. Ness, 109 Idaho 495, 708 P.2d 900 (1985).

First, Appellants argue that the district court erred in determining that Idaho does not recognize the doctrine of apparent agency as a basis of liability for tort claims. In support of their argument, Appellants direct this Court’s attention to Bailey v. Ness, 109 Idaho 495, 708 P.2d 900 (1985). In Bailey, this Court said:

There are three types of agency, any of which are sufficient to bind the principal to a contract entered into by an agent with a third party, and make the principal responsible for the agent’s tortious acts, so long as the agent has acted within the course and scope of authority delegated by the principal. The three types of agency are: express authority, implied authority, and apparent authority.

109 Idaho at 497, 708 P.2d at 902 (emphasis added). The district court determined that this language was merely dicta since Bailey was a breach of contract matter. As such, the district court relied on Landvik v. Herbert, 130 Idaho 54, 936 P.2d 697 (CtApp.1997), in which the Court of Appeals held that no appellate court in Idaho had ever applied the doctrine of apparent authority to create tort liability on the part of the principal. Landvik, 130 Idaho at 59, 936 P.2d at 702. Based in part on this holding, the district court denied Appellants’ motion for partial summary judgment on the issue of apparent agency and subsequently awarded summary judgment in favor of TVH.

In order to determine whether the district court erred, we find it necessary to review our decision in Bailey. In that case, the buyer of a feed mill system brought breach of contract and defective construction and design claims against Stan Ness, d/b/a Feed-*113Rite Systems, Inc., seeking to hold Ness liable for $37,000.00 in damages to the system. Comp. & Demand for Jury Trial; Amended Compl. & Demand for Jury Trial.3 The buyer also filed suit against Mix-Mill, Inc., a manufacturer of feed mill systems, claiming, among other things, that Mix-Mill was vicariously liable for Ness’s negligence in designing the defective feed system under the doctrine of apparent authority. Id. The district court granted summary judgment in favor of Mix-Mill on the issue of apparent authority, and we reversed, holding that there was a factual dispute as to whether Ness had apparent authority from Mix-Mill to assist in designing the buyer’s feed system. Bailey, 109 Idaho at 498, 708 P.2d at 903. Thus, we not only recognized that tort liability could be imposed under the doctrine of apparent authority, but actually extended the doctrine of apparent authority to a tort claim in that case. As such, Bailey holds that a principal can be held liable for an agent’s tortious acts under Idaho’s doctrine of apparent authority.

TVH argues that Bailey is inapplicable because it dealt with “apparent authority” rather than “apparent agency.” Specifically, TVH argues that apparent authority presupposes an existing agency relationship, whereas apparent agency does not. However, there was no preexisting agency relationship in Bailey. It was undisputed in that case that Ness was not an actual agent of Mix-Mill. Bailey, 109 Idaho at 497, 708 P.2d at 902. Furthermore, comment (a) to section 2.03 of the Restatement (Third) of Agency sets forth that apparent authority “does not presuppose the present or prior existence of an agency relationship,” but rather the doctrine can be applied to actors who appear to be agents but who actually are not. Restatement (Third) of Agency § 2.03, comment (a) (2006). Comment (b) to that section also explains that many jurisdictions use the terms “apparent authority” and “apparent agency” interchangeably. Id. at § 2.03, comment (b). Thus, our holding in Bailey applies to tort claims brought under the doctrine of apparent agency as well.

Therefore, we agree with Appellants that the doctrine of apparent agency extends to tort claims in Idaho.

B. The hospital may be found vicariously liable under Idaho’s doctrine of apparent authority for the negligence of independent personnel assigned by the hospital to perform support services.

Appellants argue that Ms. Kurtz was an apparent agent of TVH, and therefore the hospital should be held vicariously liable for her negligence attributable to Mrs. Jones’s death. “Generally, a principal is immune from liability for the negligence of ‘an independent contractor, or that of its employees, in the performance of the contracted services.’ ” Estate of Cordero v. Christ Hosp., 403 N.J.Super. 306, 958 A.2d 101, 104 (Ct.App.Div.2008) (quoting Basil v. Wolf, 193 N.J. 38, 935 A.2d 1154, 1169 (2007)). Restatement (Second) of Torts, § 409 (1965). However, there are exceptions to the general rule, one being the exception at issue referred to as “apparent authority.”4 Under section 429 of the Restatement (Second) of Torts, liability is imputed to a principal “who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants....” Id. at § 429. When determining liability in a situation such as this when an agency relationship is alleged, the Restatement (Second) of Torts defers to the Restatement of Agency. Id. at § 429, comment c. Section 2.03 of the Restatement (Third) of Agency defines “apparent authority” as “the power held by an agent or other actor to affect a principal’s legal relations *114with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency, § 2.03 (2006). The rationale for imposing liability under apparent authority is so “[a] principal may not choose to act through agents whom it has clothed with the trappings of authority and then determine at a later time whether the consequence of them acts offers an advantage.” Id. at § 2.03, comment c.

Based on case law from the majority of jurisdictions that have extended apparent authority to medical malpractice claims, TVH argues that apparent authority does not extend beyond the hospital/physician context. However, we see no reason why hospitals should be treated differently from any other entity for the purposes of imputing liability under the doctrine of apparent authority. To begin with, there is nothing in the language from the Restatement (Second) of Torts § 429 or the Restatement (Third) of Agency § 2.03 that suggests hospital liability is limited to the negligence of physicians. In fact, comment (e) to Restatement (Third) of Agency § 2.03 sets forth that apparent authority applies to “any set of circumstances under which it is reasonable for a third party to believe that an agency has authority, so long as the belief is traceable to manifestations of the principal.” Id. at § 2.03 (emphasis added). Furthermore, other jurisdictions have recognized that a hospital may be found vicariously liable for the negligence of other individuals performing support services necessary to complete the patient’s treatment. In York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill.2d 147, 305 Ill.Dec. 43, 854 N.E.2d 635 (2006), the Illinois Supreme Court stated:

If ... a patient does select a particular physician to perform certain procedures within the hospital setting, this does not alter the fact that a patient may nevertheless still reasonably rely upon the hospital to provide the remainder of the support services necessary to complete the patient’s treatment. Generally, it is the hospital, and not the patient, which exercise control not only over the provision of necessary support services, but also over the personnel assigned to provide those services to the patient during the patient’s hospital stay. To the extent the patient reasonably relies upon the hospital to provide such services, a patient may seek to hold the hospital vicariously liable under the apparent agency doctrine for the negligence of personnel performing such services even if they are not employed by the hospital.

305 Ill.Dec. 43, 854 N.E.2d at 661-62 (emphasis added). The Kentucky Court of Appeals also recognized that liability extends beyond the hospital/physician context, stating:

[I]t appears to us that when a hospital has received a patient, under whatever circumstance, and has undertaken treatment, that patient is owed a duty by the hospital through its employees and staff, including independent staff personnel, to exercise appropriate care to provide for the patient’s well-being and to promote his cure. A breach of this duty may expose the hospital to liability in tort. Any lesser rule would be insensible to the true role of a hospital as an institution in present day society.

Williams v. St. Claire Med. Ctr., 657 S.W.2d 590, 597 (Ky.Ct.App.1983) (emphasis added). In Williams, the Kentucky Court of Appeals reversed the lower court’s award of summary judgment in favor of the hospital, holding the appellant had presented sufficient evidence to survive summary judgment dismissal of appellant’s claim that the hospital was vicariously liable for the negligence of a nurse anesthetists — a non-physician — under the doctrine of apparent authority. Id. at 596. More recently, the Superior Court of New Jersey noted that courts of other jurisdictions recognize hospital liability under the doctrine of apparent authority when the “hospital has established and staffed facilities or departments through which patients receive specialized care from medical professionals with whom they do not have a prior or ongoing relationship-emergency rooms, operating rooms and anesthesiology and radiology departments.” Estate of Cordero v. Christ Hosp., 403 N.J.Super. 306, 958 A.2d 101, 107 (Ct.App.Div.2008) (emphasis added).

*115TVH raises various arguments in opposition to this Court extending Idaho’s doctrine of apparent authority to medical malpractice claims in general. First, TVH argues that the extension of apparent authority will defeat the purpose of Idaho’s Medical Malpractice Act (Act). I.C. §§ 6-1001 to — 1013. TVH argues that although I.C. § 6-1012 mentions vicarious liability, the legislature did not contemplate that a hospital could be held vicariously liable for negligence committed by those not under the hospital’s control. TVH contends that a more reasonable inference is that the legislature intended that a hospital could be held vicariously liable under the doctrine of respondeat superior rather than the doctrine of apparent authority. However, there is no language in the statute limiting the basis from which vicarious liability claims may be made. Idaho Code § 6-1012 states that a claimant may bring an action against a healthcare provider or any person5 vicariously liable for the provider’s negligence. Although the term “vicarious liability” is not defined under the Act, it is defined generally as “[l]iability that a supervisory party bears for the actionable conduct of a subordinate or associate based on the relationship between the two parties.” Blacks Law Dictionary 934 (8th ed.2004). Section 429 of the Restatement (Second) of Torts, which imposes tort liability to a principal under the doctrine of apparent agency, states as follows:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Restatement (Second) of Torts 429 (1965). Pursuant to this section, the hospitals liability arises out of the apparent agency relationship it creates with its independent contractor and thus falls under the definition of vicarious liability. Furthermore, the Restatement (Third) of Agency specifically states that a principal is vicariously liable for a tort committed by an agent acting with apparent authority. Restatement (Third) of Agency 7.08 (2006). As such, we find that the extension of apparent agency to medical malpractice claims is consistent with the Acts provision for vicarious liability.

TVH also argues that if the Court extends the doctrine of apparent authority, plaintiffs will no longer have to prove that health care providers breached the applicable standard of care through expert testimony as required by sections 6-1012 and 1013 of the Act. However, our extension of the doctrine does not change the standard for establishing negligence on the part of a healthcare provider; rather, it provides an additional basis from which the hospital’s liability can arise. When a hospital is being sued in its capacity as an individual healthcare provider, the plaintiff is still required to prove that the hospital breached the applicable standard of care through expert testimony. On the other hand, when a hospital is being sued in its capacity as the principal, the plaintiff is required to prove that the hospital’s agent is a healthcare provider as required under the statute, and that the agent breached the applicable standard of care. Thus, the hospital is held vicariously liable for its agent’s negligence to the same extent as if the hospital itself breached the standard of care under the Act. Therefore, we find that our extension of apparent authority does not conflict with the Act’s standard for establishing negligence on the part of the healthcare provider.

In addition, TVH argues that if the doctrine of apparent authority is extended to medical malpractice claims, it would effectively reinstate joint and several liability. In support of its argument, TVH directs our attention to I.C. § 6-803, under which the Idaho legislature has limited the application *116of joint and several liability to two situations: 1) where a party was acting in concert with another, or 2) where a party was acting as an agent or servant of another party. I.C. § 6-803(3), (5). In respect to the latter, TVH argues that the legislature only intended that joint and several liability be extended to actual agents. However, the statute only requires that the person be “acting as an agent.” I.C. § 6-803(5) (emphasis added). Because the statute does not define “agent,” we must apply the plain meaning of the term. This Court has recognized that there are three types of agency — express authority, implied authority, and apparent authority, see Bailey, 109 Idaho at 497, 708 P.2d at 902. Therefore, the term “agent” encompasses express agents, implied agents, and apparent agents under Idaho law. As such, we find TVH’s argument to be without merit.

Based on our analysis set forth in Parts III.A and III.B, we hold that a hospital may be found vicariously liable under Idaho’s doctrine of apparent authority for the negligence of independent personnel assigned by the hospital to perform support services. Therefore, we reverse the district court award of summary judgment in favor of TVH.

C. Elements of apparent agency.

The district court’s award of summary judgment was based on the incorrect legal conclusion that Idaho had not extended the doctrine of apparent authority to tort claims. Because the parties stipulated that TVH was not negligent in its own right, the district court found no basis under Idaho law for which TVH could be held liable. As such, the district court did not go on to analyze the facts of the case to determine whether Appellants had presented sufficient evidence for their claim of apparent authority against TVH to submit to the jury. Rule 56(c) of the Idaho Rules of Civil Procedure sets forth that summary judgment shall be awarded “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). As such, we must remand the case back to the district court for a determination of whether or not the pleadings, depositions, and admissions on file, together with the affidavits, show that there is a genuine issue of material fact regarding Appellants’ claim of apparent authority.

Before we remand the case, however, we seek to clarify the elements that Appellants must establish in order to survive summary judgment dismissal. The standard for apparent authority stated in section 2.03 of the Restatement (Third) of Agency and section 429 of the Restatement (Second) of Torts has two essential elements: 1) conduct by the principal that would lead a person to reasonably believe that another person acts on the principal’s behalf, i.e., conduct by the principal “holding out” that person as its agent; and 2) acceptance of the agent’s service by one who reasonably believes it is rendered on behalf of the principal. Estate of Cordero v. Christ Hosp., 403 N.J.Super. 306, 958 A.2d 101, 106 (Ct.App.Div.2008).

TVH argues that we should affirm the district court’s award of summary judgment because Appellants have failed to establish any evidence of reliance in support of their claim of apparent authority. However, the Restatement (Third) of Agency, which superseded the Restatement (Second) of Agency in 2006, only requires that Appellants establish Mrs. Jones reasonably believed that Ms. Kurtz was an agent of TVH. Specifically, section 2.03 of the Restatement (Third) of Agency sets forth that a plaintiff is required to show a reasonable belief that the actor had authority to act on behalf of the principal that is traceable to the principal’s manifestations to the plaintiff. Restatement (Third) of Agency, § 2.03 (2006). The doctrine of agency by estoppel, on the other hand, requires a plaintiff to demonstrate justifiable reliance and a detrimental change in position. Id. at § 2.05 and accompanying comments. The Restatement (Second) of Agency did not distinguish between apparent authority and agency by estoppel; thus, most jurisdictions recognizing apparent authority as a basis for hospital liability under the Restatement (Second) of Agency require plaintiffs to demonstrate the more stringent element of reliance to establish liability. *117However, as the Superior Court of New Jersey recently explained:

There is a notable difference between sections 2.03 [of the Restatement (Third) of Agency] and 429 [of the Restatement (Second) of Torts] and the standard for apparent authority provided in section 267 of the Restatement (Second) of Agency (1958), which includes an element of reliance. Reliance is an element of apparent authority under sections 2.03 and 429 only to the extent that it is subsumed in the requirement that the person accepting an agent’s services do so in the “reasonable belief’ that the service is rendered in behalf of the principal.

Estate of Cordero, 958 A.2d at 106, n. 3. Therefore, under the Restatement (Third) of Agency, a plaintiff is only required to prove reasonable belief, rather than justifiable reliance, to satisfy a claim of apparent authority.

Furthermore, we find that a standard of “reasonable belief’ rather than “reliance” more fairly comports with Idaho’s prior case law regarding apparent authority. In Bailey v. Ness, 109 Idaho 495, 708 P.2d 900 (1985), we stated that “[apparent authority] is created when the principal ‘voluntarily places an agent in such a position that a person of ordinary prudence, conversant with the business usages and the nature of a particular business, is justified in believing that the agent is acting pursuant to existing authority.’” 109 Idaho at 497, 708 P.2d at 902 (citing Clements v. Jungert, 90 Idaho 143, 152, 408 P.2d 810, 814 (1965)) (italics provided, emphasis added). Although the portions regarding “business usages” and “the nature of a particular business” are irrelevant to the case at hand, this language demonstrates that we have only required that a person be “justified in believing” the agent was acting pursuant to existing authority, rather than relying on the agent’s services, in order to establish apparent authority. We find no persuasive reasoning for adopting the more stringent standard of reliance for cases where the principal is a hospital.

Therefore, we remand the case back to the district court for a determination of whether Appellants presented sufficient evidence in support of their claim of apparent agency against TVH to survive summary judgment dismissal based on the elements set forth above.

VII. CONCLUSION

For the reasons set forth above, we reverse the district court’s award of summary judgment to TVH, and remand the case for a determination of whether Appellants presented sufficient evidence for their claim of apparent agency to survive summary judgment dismissal. Based on our holding, we decline to consider TVH’s cross-appeal regarding the district court’s dismissal of its request for discretionary costs.

Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, concur.

*307OPINION OF THE COURT

Alexander, J.

In this medical malpractice action, defendant, Dr. Irwin L. Harris, appeals from an order of the Appellate Division unanimously affirming an amended judgment of Supreme Court, entered on a jury verdict, finding him jointly and severally liable with Dr. Sol Rogatnick for injuries negligently inflicted upon plaintiff, Josephine Ravo, and resulting in brain damage that has rendered her severely and permanently retarded. The issue presented is whether joint and several liability was properly imposed upon defendant under the circumstances of this case where, notwithstanding that the defendants neither acted in concert nor concurrently, a single indivisible injury — brain damage — was negligently inflicted. For the reasons that follow, we affirm.

I.

Uncontroverted expert medical evidence established that plaintiff, Josephine Ravo, who at the time of trial was 14 years of age, was severely and permanently retarded as a *308result of brain damage she suffered at birth. The evidence demonstrated that the child was born an unusually large baby whose mother suffered from gestational diabetes which contributed to difficulties during delivery. The evidence further established that Dr. Rogatnick, the obstetrician who had charge of the ante partum care of Josephine’s mother and who delivered Josephine, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that Dr. Harris, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant’s condition after birth. Based upon this evidence, the jury concluded that Dr. Rogatnick committed eight separate acts of medical malpractice, and Dr. Harris committed three separate acts of medical malpractice.

Although Dr. Rogatnick’s negligence contributed to Josephine’s brain damage, the medical testimony demonstrated that Dr. Harris’ negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors. Indeed, plaintiff’s expert, Dr. Charash, testified that while the hypoxia and trauma directly attributable to Dr. Rogatick’s negligence were two major villains — being the most common causes of perinatal difficulty — the hyperbilirubinemia and excessively high hematocrit level inadequately addressed by Dr. Harris could not be excluded as having a contributing effect. The expert concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Similarly, Dr. Perrotta, testifying on behalf of plaintiff, opined that she could not tell whether the excessively high hematocrit level contributed “10 percent, 20 percent, or anything like that” to the injury. Nor, as the Appellate Division found, did Dr. Harris adduce any evidence that could support a jury finding that he caused an identifiable percentage of the infant plaintiff’s brain damage. Indeed, Dr. Harris’ entire defense appears to have been that he was not responsible for the plaintiff’s injury to any degree.

The trial court instructed the jury that if they found that both defendants were negligent, and that their separate and independent acts of negligence were direct causes of a single injury to the plaintiff, but that it was not possible to determine what proportion each contributed to the injury, they *309could find each responsible for the entire injury even though the act of one may not have caused the entire injury, and even though the acts of negligence were not equal in degree. The court further instructed the jury that if they found that both defendants were negligent, they would have “to compare their negligence on the basis of 100 percent”. The court also instructed the jury that if they found both defendants responsible for the plaintiff’s injury “then you will evaluate their respective faults in contributing to the infant’s condition”.

These instructions were explanatory of an interrogatory, previously accepted without objection by Dr. Harris, and submitted to the jury, that requested the standard Dole v Dow apportionment of fault (Dole v. Dow Chem. Co., 30 NY2d 143). Notwithstanding his failure to object to this interrogatory, Dr. Harris raised for the first time, after the jury was charged, an objection to the instructions, contending that he was only “liable for what injury he puts [sic] on top of the injury that exists”, and therefore responsible only as a successive and independent tort-feasor. The trial court rejected defendant’s contention, and the jury returned a verdict for plaintiff in the total amount of $2,750,000 attributing 80% of the “fault” to Dr. Rogatnick and 20% of the "fault” to Dr. Harris.

In a postverdict motion, Dr. Harris sought an order directing entry of judgment limiting the plaintiff’s recovery against him to $450,000 (20% of the $2,250,000 base recovery — the court having setoff $500,000 received by plaintiff in settlement of claims against other defendants) based upon his contention that his liability was not joint and several, but rather was independent and successive. This motion was denied. The Appellate Division dismissed Harris’ appeal from the order denying the postverdict motion and affirmed the amended judgment entered on the jury’s verdict.

II.

When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable (see, Suria v Shiffman, 67 NY2d 87; Bichler v Lilly & Co., 55 NY2d 571; Derby v Prewitt, 12 NY2d 100, 105; Sweet v Perkins, 196 NY 482, 485). This is so because such concerted wrongdoers are considered “joint tort-feasors” and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each (Bichler v *310 Lilly & Co., 55 NY2d 571, 580-581, supra; see generally, Prosser and Keeton, Torts § 46 [5th ed]). On the other hand, where multiple tort-feasors “neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive” (Suria v Shiffman, 67 NY2d 87, 98, supra; see, Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57, 66; Derby v Prewitt, 12 NY2d 100, 105, supra; Matter of Parchefsky v Kroll Bros., 267 NY 410, 413). Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts (Milks v McIver, 264 NY 267, 270), including aggravation of injuries by a successive tort-feasor (Milks v McIver, 264 NY 267, 270, supra; Matter of Parchefsky v Kroll Bros., 267 NY 410, 414, supra; Derby v Prewitt, 12 NY2d 100, 105, supra). The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused (see, Suria v Shiffman, 67 NY2d 87, 98, supra; Derby v Prewitt, 12 NY2d 100, 106, supra; Dubicki v Maresco, 64 AD2d 645, 646; see also, Zillman v Meadowbrook Hosp. Co., 45 AD2d 267).

It is sometimes the case that tort-feasors who neither act in concert nor concurrently may nevertheless be considered jointly and severally liable. This may occur in the instance of certain injuries which, because of their nature, are incapable of any reasonable or practicable division or allocation among multiple tort-feasors (see, e.g., Hawkes v. Goll, 281 NY 808, affg 256 App Div 940; Slater v. Mersereau, 64 NY 138; Wiseman v. 374 Realty Corp., 54 AD2d 119; see also, Prosser and Keeton, Torts § 52, at 347 [5th ed]).

We had occasion to consider such a circumstance in Slater v. Mersereau (64 NY 138, supra), where premises belonging to the plaintiff were damaged by rainwater as a result of the negligent workmanship by a general contractor and a subcontractor. We held that where two parties by their separate and independent acts of negligence, cause a single, inseparable injury, each party is responsible for the entire injury: “Although they acted independently of each other, they did act at the same time in causing the damages each contributing towards it, and although the act of each, alone and of itself, might not have caused the entire injury, under the circumstances presented, there is no good reason why each should not be liable for the damages caused by the different acts of all the water with which each of the parties were *311instrumental in injuring the plaintiffs was one mass and inseparable, and no distinction can be made between the different sources from whence it flowed, so that it can be claimed that each caused a separate and distinct injury for which each one is separately responsible [t]he contractor and subcontractors were separately negligent, and although such negligence was not concurrent, yet the negligence of both these parties contributed to produce the damages caused at one and the same time” (Slater v Mersereau, 64 NY 138, 146-147, supra).

Our affirmance in Hawkes v. Goll (281 NY 808, affg 256 App Div 940, supra) demonstrates that simultaneous conduct is not necessary to a finding of joint and several liability when there is an indivisible injury. In that case, the decedent was struck by the vehicle driven by the defendant Farrell and was thrown across the roadway, where very shortly thereafter he was again struck, this time by the vehicle driven by the defendant Goll, and dragged some 40 to 50 feet along the highway. He was taken to the hospital where he expired within the hour. The Appellate Division stated (256 App Div 940): “As the result of his injuries the plaintiff’s intestate died within an hour. There could be no evidence upon which the jury could base a finding of the nature of the injuries inflicted by the first car as distinguished from those inflicted by the second car. The case was submitted to the jury upon the theory that if both defendants were negligent they were jointly and severally liable. While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury.”

A similar result was reached in Wiseman v 374 Realty Corp. (54 AD2d 119, supra). There, the decedent had sustained injuries in a fall caused by the defective stairway and handrail in the defendant 374 Realty Corp.’s building which resulted in his hospitalization. While hospitalized, he was treated, until his death, with a drug “Decadron”, allegedly known to cause stomach bleeding as a side effect, and requiring an adequate amount of antacid therapy on a daily basis to prevent and protect against such occurrence. In reinstating Dole v Dow cross claims by the manufacturer of the “Decadron” and the hospital against 374 Realty Corp., the court observed that notwithstanding that the acts of negligence occurred at separate times, the injuries sustained by the *312decedent resulted in his death, and that no distinction could be made between the injuries sustained through the negligence of the building owner and those resulting from the improper conduct of the manufacturer and the hospital (Wise-man v 374 Realty Corp., 54 AD2d 119, 122, supra).

Similarly, here the jury was unable to determine from the evidence adduced at trial the degree to which the defendants’ separate acts of negligence contributed to the brain damage sustained by Josephine at birth. Certainly, a subsequent tortfeasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others (see, Chipman v. Palmer, 77 NY 51; see generally, Prosser, Joint Torts and Several Liability, 25 Calif L Rev 413). Here, however, the evidence established that plaintiffs brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.

Harris argues, however, that since the jury ascribed only 20% of the fault to him, this was in reality an apportionment of damage, demonstrating that the injury was divisible. This argument must fail. Clearly, the court’s instruction, and the interrogatory submitted in amplification thereof, called upon the jury to determine the respective responsibility in negligence of the defendants so as to establish a basis for an apportionment between them, by way of contribution, for the total damages awarded to plaintiff (see, CPLR 1401; Dole v Dow Chem. Co., 30 NY2d 143, supra). In that respect, the jury’s apportionment of fault is unrelated to the nature of defendants’ liability (i.e., whether it was joint and several or independent and successive).

As we said in Schauer v Joyce (54 NY2d 1, 5): “CPLR 1401, which codified this court’s decision in Dole v Dow Chem Co. (30 NY2d 143), provides that ‘two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.’ The section ‘applies not only to joint tortfeasors, but also to concurrent successive, independent, alternative, and even intentional tortfeasors’ (Siegel, New York Practice, § 172, p 213; see McLaughlin, Practice Com*313mentarles, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, pp 362-363).” The focus and purpose of the Dole v Dow inquiry, therefore, is not whether, or to what degree, a defendant can be cast in damages to a plaintiff for a third party’s negligence, as was the case in Zillman v Meadowbrook Hosp. Co. (45 AD2d 267, supra). Rather, it seeks to determine “whethereach defendant owed a duty to plaintiff and whether, by breaching their respective duties, they contributed to plaintiff’s ultimate injury” claimed to have been caused by each defendant (Helmrich v Lilly & Co., 89 AD2d 441, 444; see, Schauer v Joyce, 54 NY2d 1, 5, supra).

Here, the jury determined that the defendants breached duties owed to Josephine Ravo, and that these breaches contributed to her brain injury. The jury’s apportionment of fault, however, does not alter the joint and several liability of defendants for the single indivisible injury. Rather, that aspect of the jury’s determination of culpability merely defines the amount of contribution defendants may claim from each other, and does not impinge upon plaintiff’s right to collect the entire judgment award from either defendant (CPLR 1402). As we stated in Graphic Arts Mut. Ins. Co. v. Bakers Mut. Ins. Co. (45 NY2d 551, 557): “The right under the Dole-Dow doctrine to seek equitable apportionment based on relative culpability is not one intended for the benefit of the injured claimant. It is a right affecting the distributive responsibilities of tort-feasors inter sese * * * It is elementary that injured claimants may still choose which joint tort-feasors to include as defendants in an action and, regardless of the concurrent negligence of others, recover the whole of their damages from any of the particular tort-feasors sued (see Kelly v Long Is. Light. Co., 31 NY2d 25, 30).” This being so, in light of the evidence establishing the indivisibility of the brain injury and the contributing negligence of Dr. Harris, and of the manner in which the case was tried and submitted to the jury, we conclude that joint and several liability was properly imposed.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

GRIMES, Justice.

The Fourth District Court of Appeal has certified the following question as one of great public importance:

DOES THE HOLDING IN LINCENBERG v. ISSEN DICTATE AN AFFIRMANCE OF THE TRIAL COURT’S DECISION IN THIS CASE?

Walt Disney World Co. v. Wood, 489 So.2d 61, 63 (Fla. 4th DCA 1986). We have jurisdiction pursuant to article Y, section 3(b)(4), Florida Constitution.

Aloysia Wood was injured in November 1971 at the grand prix attraction at Walt Disney World (Disney), when her fiance,1 Daniel Wood, rammed from the rear the vehicle which she was driving. Aloysia Wood filed suit against Disney, and Disney sought contribution from Daniel Wood.2 After trial, the jury returned a verdict finding Aloysia Wood 14% at fault, Daniel Wood 85% at fault, and Disney 1% at fault. The jury assessed Wood’s damages at $75,-000. The court entered judgment against Disney for 86% of the damages. Disney subsequently moved to alter the judgment to reflect the jury’s finding that Disney was only 1% at fault. The court denied the motion. On appeal, the fourth district affirmed the judgment on the basis of this Court’s decision in Lincenberg v. Issen, 318 So.2d 386 (Fla.1975).

In Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), this Court discarded the rule of contributory negligence, which Florida had followed since at least 1886, and adopted the pure comparative negligence standard. See Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987) (tracing the evolution of contributory and comparative negligence); Louisville & N.R.R. v. Yniestra, 21 Fla. 700 (1886) (establishing contributory negligence on the part of a prospective plaintiff as a bar to any recovery against a defendant). In adopting comparative negligence, this Court expressly declared two purposes for the change in judicial policy:

(1) To allow a jury to apportion fault as it sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury; and

(2) To apportion the total damages resulting from the loss or injury according to the proportionate fault of each party.

Hoffman, 280 So.2d at 439.

Thereafter, in Lincenberg v. Issen, a faultless plaintiff obtained a verdict in which the jury determined that one defendant was 85% percent negligent and the other defendant was 15% negligent. The district court of appeal held that the jury should not have been asked to apportion fault between the defendants. Issen v. Lincenberg, 293 So.2d 777 (Fla. 3d DCA 1974). On review, this Court concluded that the rationale of Hoffman v. Jones dictated the elimination of the rule against contribution among joint tortfeasors. The Court then said that since “ ‘no contribu*200tion’ is no longer a viable principle in Florida, we were confronted with the problem of determining what procedure will most fully effectuate the principle that each party should pay the proportion of the total damages he has caused to the other party, and we considered several alternatives.” Lincenberg, 318 So.2d at 392 (footnote omitted). At this point, the Court stated in footnote 2 that among the alternatives considered was pure apportionment whereby the plaintiff may recover judgment against codefendants only for the percentage of damages caused by the negligence of each individual defendant. However, the Court noted that the legislature had just passed section 768.31, Florida Statutes (1975), which provided for contribution among joint tortfeasors and interpreted the statute as retaining the “full, joint, and several liability of joint tortfeasors to the plaintiff.” Thus, the Court held:

The plaintiff is entitled to a measurement of his full damages and the liability for these damages should be apportioned in accordance with the percentage of negligence as it relates to the total of all the defendants. The negligence attributed to the defendants will then be apportioned on a pro rata basis without considering relative degrees of fault although the multiparty defendants will remain jointly and severally liable for the entire amount.

Lincenberg, 318 So.2d at 393-94.

While arising in the context of a faultless plaintiff, it cannot reasonably be said that the Court in Lincenberg did not pass on the question now before us. Understandably, courts addressing the issue in subsequent decisions, including this Court, have interpreted Lincenberg as upholding the doctrine of joint and several liability. Borden, Inc. v. Florida E. Coast Ry., 772 F.2d 750 (11th Cir.1985); Woods v. Withrow, 413 So.2d 1179 (Fla.1982); Department of Transportation v. Webb, 409 So.2d 1061 (Fla. 1st DCA 1981), review denied, 419 So.2d 1200 (Fla.1982); Metropolitan Dade County v. Asusta, 359 So.2d 58 (Fla. 3d DCA 1978); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA), cert, denied, 337 So.2d 809 (Fla.1976). Therefore, the certified question, as worded, must be answered in the affirmative.

The real issue before us is whether we should now replace the doctrine of joint and several liability with one in which the liability of codefendants to the plaintiff is apportioned according to each defendant’s respective fault. According to Disney, this Court in Hoffman set for itself the goal of creating a tort system that fairly and equitably allocated damages according to the degrees of fault. Therefore, a defendant should only be held responsible to the extent of his fault in the same way as a plaintiff under comparative negligence.

Joint and several liability is a judicially created doctrine. Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914). This Court may alter a rule of law where great social upheaval dictates its necessity. Hoffman, 280 So.2d 435. The “social upheaval” which is said to have occurred here is the fundamental alteration of Florida tort law encompassed by the adoption of comparative negligence.3 Following the adoption of comparative negligence, some states have passed laws eliminating joint and several liability,4 and the courts of several others have judicially abolished the doctrine. E.g., Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978); Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, *201646 P.2d 579 (Ct.App.), cert, denied, 98 N.M. 336, 648 P.2d 794 (1982); Laubach v. Morgan, 588 P.2d 1071 (Okla.1978). The Kansas Supreme Court in Brown v. Keill reasoned:

There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some competing social policy the plaintiff cannot receive payment for his injuries from the spouse or agency, there is no compelling social policy which requires the code-fendant to pay more than his fair share of the loss. The same is true if one of the defendants is wealthy and the other is not.

Brown, 224 Kan. at 203, 580 P.2d at 874.

On the other hand, the majority of courts which have faced the issue in jurisdictions with comparative negligence have ruled that joint and several liability should be retained. E.g., Arctic Structures, Inc. v. Wedmore, 605 P.2d 426 (Alaska 1979); American Motorcycle Ass’n v. Superior Court, 20 Cal.3d 578, 578 P.2d 899, 146 CaLRptr. 182 (1978); Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979); Coney v. J.L.G. Industries, Inc., 97 I11.2d 104, 73 IlLDec. 337, 454 N.E.2d 197 (1983); Kirby Bldg. Sys. v. Mineral Explorations, 704 P.2d 1266 (Wyo.1985). The Illinois Supreme Court in Coney v. J.L.G. Industries, Inc. gave four reasons justifying the retention of joint and several liability:

(1)The feasibility of apportioning fault on a comparative basis does not render an indivisible injury “divisible” for purposes of the joint and several liability rule. A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage. In many instances, the negligence of a concurrent tortfeasor may be sufficient by itself to cause the entire loss. The mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent defendant as compared to another does not in any way suggest that each defendant’s negligence is not a proximate cause of the entire indivisible injury.

(2) In those instances where the plaintiff is not guilty of negligence, he would be forced to bear a portion of the loss should one of the tortfeasors prove financially unable to satisfy his share of the damages.

(3) Even in cases where a plaintiff is partially at fault, his culpability is not equivalent to that of a defendant. The plaintiffs negligence relates only to a lack of due care for his own safety while the defendant’s negligence relates to a lack of due care for the safety of others; the latter is tortious, but the former is not.

(4) Elimination of joint and several liability would work a serious and unwarranted deleterious effect on the ability of an injured plaintiff to obtain adequate compensation for his injuries.

Coney, 97 I11.2d at 121-22, 73 Ill.Dec. at 345, 454 N.E.2d at 205 (citations omitted).

The desirability of abolishing joint and several liability in Florida has also been debated for years both in and out of the legislative halls. See Note, Modification of the Doctrine of Joint and Several Liability: Who Bears the Risk?, 11 Nova L.J. 165 (Fall 1986). In 1986 the legislature substantially modified the doctrine of joint and several liability as part of its comprehensive tort reform law. § 768.81, Fla. Stat. (Supp.1986). The fact that the new statute did not entirely abolish the doctrine but provided for apportionment of fault only under certain circumstances further indicates the complexity of the problem and suggests there may be no one resolution of the issue which will satisfy the competing interests involved.5

*202While recognizing the logic in Disney’s position, we cannot say with certainty that joint and several liability is an unjust doctrine or that it should necessarily be eliminated upon the adoption of comparative negligence. In view of the public policy considerations bearing on the issue, this Court believes that the viability of the doctrine is a matter which should best be decided by the legislature. Consequently, we approve the decision of the district court of appeal.

It is so ordered.

EHRLICH, BARKETT and KOGAN, JJ., concur.

McDONALD, C.J., dissents with an opinion, in which OVERTON and SHAW, JJ., concur.

OVERTON, J., dissents with an opinion.

McDONALD, Chief Justice,

dissenting.

The majority opinion may make social sense, but it defies legal logic. The doctrines of joint and several liability and contributory negligence are consistent with each other. Each tortfeasor, as a part of the whole, is liable for the whole. Comparative negligence, which does not bar, but reduces a recovery to the extent of individual fault, requires a separation of fault between the injured party and the other tortfeasors. It would be a mismatch of legal concepts to have a separation theory for the plaintiffs and a joint liability responsibility for defendants. Comparative negligence recognized the ability of a court to determine and apportion damages in relation to the harm caused. Joint and several, in contrast, presumes the inability of the judiciary to divide fault among parties. We have now said that we can. Accordingly, when the comparative negligence doctrine comes into play, as it did in this case, the law of joint and several liability should be repudiated and each defendant held accountable for only the percentage of damages found by the trier of fact to have been caused by his conduct.

In Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), we said “[wjhatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss.” Id. at 436. In furtherance of the principles set forth in Hoffman, this Court, recognizing the enactment of section 768.31, Florida Statutes (1975), removed the common law bar against contribution between joint tort-feasors in Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). In doing so, we recognized that the equitable apportionment principle espoused in Hoffman should have broader application than permitting a plaintiff recovery for damages if he was partially at fault. As we concluded in Lincenberg, “it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault.” 318 So.2d at 391. Instead, “[wjhen the negligence of more than one person contributes to the occurrence of an accident, each person should pay the proportion of the total damages he has caused the other party.” Id. at 389 (quoting Hoffman, 280 So.2d at 437). I believe these principles, which in Lincen-berg we discussed in the context of contribution, are equally applicable to the concept of joint and several liability.

Although the district court in the case at bar relied on Lincenberg for the proposition that multiparty defendants remain jointly and severally liable under Florida’s comparative negligence system, this reliance was misplaced. Lincenberg dealt solely with the question of whether contribution should be allowed under Florida’s new comparative negligence system. The plaintiff in Lincenberg was faultless. The opinion never squarely addressed the issue of whether joint and several liability was consistent with Florida's new system of comparative negligence. Although some reference was made in dicta concerning the effect of section 768.31, Florida Statutes (1975), those statements were never intend*203ed to mean that section 768.31 codified joint and several liability.

Section 768.31 adopted the Uniform Contribution Among Tortfeasors Act, which sets out the scheme governing the allocation and the limits of a joint tortfeasor’s contribution rights.1 A literal reading of this statute makes it clear that only when joint and several liability is found will the statute apply. § 768.31(2)(a). The statute in no way purports to determine when persons become jointly and severally liable. I find support for this interpretation of the statute both in the plain language of the act itself and in the interpretation given to the uniform act by at least one of our sister states that has addressed the identical question. See Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 154, 646 P.2d 579, 581 (Ct.App.) (act does not purport to determine whether a person is jointly or severally liable to a plaintiff), cert, denied, 98 N.M. 336, 648 P.2d 794 (1982), affirmed sub nom., Taylor v. Delgamo Transportation, Inc., 100 N.M. 138, 667 P.2d 445 (1983). See also § 768.31(6), Fla.Stat. (1985) (“This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.”); Uniform Contribution Among Tortfeasors Act, Commissioner’s Prefatory Note (1955 revision), 12 U.L.A. 59 (1975) (act distributes burden among those whose joint liability has been established); Note, Contribution Act Construed — Should Joint and Several Liability Have Been Considered First?, 30 U. Miami L.Rev. 747, 756-57 (1976).

I do agree that, despite the fact that Lincenberg does not represent a definitive statement from this Court concerning the continuing viability of joint and several liability in Florida, Florida’s courts have consistently applied the doctrine up to the present time. See, e.g., Woods v. Withrow, 413 So.2d 1179, 1182 n. 3 (Fla.1982) (doctrine of joint and several liability fully retained); Department of Transportation v. Webb, 409 So.2d 1061, 1063 (Fla. 1st DCA 1981) (joint and several liability applies despite adoption of comparative negligence), review denied, 419 So.2d 1200 (Fla.1982), approved as modified, 438 So.2d 780 (Fla. 1983). None of these cases involved a situation where the plaintiff’s fault exceeded that of the targeted joint tortfeasor.

Section 768.31 does not prevent a change in the doctrine of joint and several liability or when it is to be applied. Moreover, I find no other statutory enactment preventing this Court from reconsidering the application of the doctrine to causes of action arising prior to July 1, 1986. Although I recognize that section 768.81, Florida Statutes (Supp.1986), controls the fate of joint and several liability for causes of action arising after July 1, 1986, this statute is expressly inapplicable to causes of action, such as the instant case, that arose prior to that date.2

*204All but six states have now made the switch from contributory to comparative negligence.3 Of the states that have made this fundamental change, the majority have grappled directly with the viability of joint and several liability under their comparative negligence schemes. I acknowledge from the outset that these states have reached a variety of results.4 Nevertheless, a survey of the relevant case law from across the nation reveals that those courts that have ruled in favor of retaining joint and several liability following the adoption of comparative negligence have rested their decisions on two fundamental grounds, neither of which I find defensible under Florida’s modern tort scheme.

The first ground is the concept that a plaintiffs injury is indivisible. E.g., Coney v. J.L.G. Industries, Inc., 97 I11.2d 104, 121-22, 73 Ill.Dec. 337, 345, 454 N.E.2d 197, 205 (1983); American Motorcycle Association v. Superior Court, 20 Cal.3d 578, 588, 578 P.2d 899, 905, 146 Cal.Rptr. 182, 188 (1978). This idea arises from the ancient common law theory that the plaintiff’s loss grew out of one united cause of action in which the act of one defendant was considered the act of all and that the jury could not apportion damages because there was only one wrong. Smith v. Department of Insurance, 507 So.2d 1080, 1091 (Fla.1987); Bartlett, 98 N.M. at 157, 646 P.2d at 584; Prosser, Joint Torts and Several Liability, 25 Cal.L.Rev. 413 (1936-37). This unity concept apparently arose from common law realities concerning rules of pleading and joinder. Bartlett, 98 N.M. at 157, 646 P.2d at 584. Under this theory, a concurrent tortfeasor who, like Disney, is one percent at fault is liable for 100 percent of the damages caused by all concurrent tortfeasors based on the idea that each tortfeasor caused the plaintiff’s entire loss. This result was palatable under Florida law as it existed prior to Hoffman because contributory negligence guaranteed fault-free plaintiffs, the law barred contribution among tortfeasors, and courts did not allocate fault among the various parties. Due to the considerable obstacles confronting a potential plaintiff under such a system, the law compensated *205a legally “pure” plaintiff for these inherent inequities by allowing him to collect his entire judgment from any defendant guilty of even slight negligence. Laubaeh v. Morgan, 588 P.2d 1071, 1074 (Okla.1978).

On the other hand, this justification breaks down under Florida’s present system. Under pure comparative negligence, even a plaintiff who is ninety-nine percent at fault can bring suit. Thus, the need to compensate necessarily pure plaintiffs for the inherent inequities in the tort system no longer exists. Moreover, pursuant to our decision in Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012 (Fla. 1977), juries routinely allocate fault in every comparative negligence case. The inability to apportion fault, assumed under common law, has been specifically eliminated. It would be an illogical fiction to say that, although fault may be apportioned, causation cannot. Bartlett, 98 N.M. at 158, 646 P.2d at 585. Therefore, the indivisible wrong theory, founded on common law technicalities, is obsolete under pure comparative negligence. Where the reasons for a common law rule no longer exist, the rule should be discarded. Sparks v. State, 273 So.2d 74 (Fla.1973).

The second justification cited for retaining joint and several liability is that the doctrine is needed in order to insure that plaintiffs do not bear the risk of being unable to collect their judgments. E.g., Coney, 97 U1.2d at 122-23, 73 Ill.Dec. at 345, 454 N.E.2d at 205; Rozevink v. Faris, 342 N.W.2d 845, 850 (Iowa 1983); Weeks v. Feltner, 99 Mich.App. 392, 395, 297 N.W.2d 678, 680 (1980); Arctic Structures, Inc. v. Wedmore, 605 P.2d 426, 434-35 (Alaska 1979); American Motorcycle Association, 20 Cal.3d at 589-90, 578 P.2d at 905-06,146 CaLRptr. 188-89. I see little validity in this argument either. Between one plaintiff and one defendant, the plaintiff necessarily bears the risk of the defendant being insolvent. I fail to see the justice in shifting the risk simply because there are two defendants, one of whom is solvent or otherwise subject to suit. See Bartlett, 98 N.M. at 158, 646 P.2d at 585. As one of our sister courts has cogently noted:

There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some competing social policy the plaintiff cannot receive payment for his injuries from the spouse or agency, there is no compelling social policy which requires the code-fendant to pay more than his fair share of the loss. The same is true if one of the defendants is wealthy and the other is not.

Brown v. Keill, 224 Kan. 195, 203, 580 P.2d 867, 874 (1978). I agree. I see no justification for compelling Disney to pay 100 percent of the damage award simply because Mrs. Wood chose to marry the other tort-feasor, an individual whom the jury found to be eighty-five times more at fault than Disney.

Moreover, the familiar axiom that, because it happens to be a solvent business entity, a defendant is necessarily better able to spread the loss than the plaintiff is not true in every case. After all, not every defendant is General Motors or Disney. The doctrine of joint and several liability applies equally to all defendants, whether they be large corporations, small independent businesses, or individuals. In the case of a small business, the net result of a damage award entered pursuant to joint and several liability can be to crush the business financially regardless of whether the company bore a significant degree of fault for the plaintiffs injury. No social policy can sanction such a result.

Participants in an accident contribute to its occurrence in many ways and the consequences of their negligence intertwine. Their blameworthiness, be it moral or legal, is not predicated upon their respective roles as plaintiffs or defendants in subsequent litigation. If we are ever to achieve a just and equitable tort system, we must predicate a party’s liability upon his or her blameworthiness, not upon his or her solvency or a codefendant’s susceptibility to *206suit. Bartlett, 98 N.M. at 158, 646 P.2d at 585. Those who argue for favoring the plaintiff merely because he or she is the plaintiff have lost sight of the paramount goal of comparative negligence.

By adopting pure comparative negligence in Hoffman, this Court set for itself the goal of creating a tort system that fairly and equitably allocates damages. 280 So. 2d at 438. See Placek v. City of Sterling Heights, 405 Mich. 638, 660-61, 275 N.W.2d 511, 519-20 (1979) (pure comparative negligence most nearly accomplishes the fair and equitable allocation of damages). Basing a defendant’s liability upon the ability of others to pay runs counter to Hoffman ’s pronouncement that the liability of the defendant should not depend upon what damages were suffered, but upon what damages the defendant caused. 280 So.2d at 439. Therefore, I would hold that when a plaintiff is partially at fault the doctrine of joint and several liability is abrogated in Florida in favor of a rule that each defendant is liable only for an amount which is equivalent to the total damages multiplied by the percentage of fault by that defendant. For those accidents to which section 768.71, Florida Statutes (Supp.1986), applies, this ruling would be modified to conform to the statute.

OVERTON and SHAW, JJ., concur.

OVERTON, Justice,

dissenting.

I fully concur with Chief Justice McDonald’s dissenting opinion.

To say it is proper for this Court to change the contributory negligence doctrine to comparative negligence by court decision, and then say the judicially established companion doctrine of joint and several liability should be left to the legislature, is both an abdication of our responsibility to address judicially established legal principles and, in this instance, hypocritical.

Our tort system is founded on the principle of fault, with the one whose fault caused injury being liable for the damages he or she caused. In this instance, the tortfeasor that caused only one percent of the injury is required to pay eighty-six percent of the damages. The majority opinion appears to convey the impression that a majority of jurisdictions would allow this type of recovery. That is a false impression. The large majority of jurisdictions recognize the injustice of a rule that would allow a recovery in this circumstance. The majority of jurisdictions which have adopted comparative negligence allow a plaintiff to recover from a defendant on the basis of joint and several liability only if the defendant’s negligence is greater than the plaintiff’s negligence or if the defendant is at least fifty percent negligent. Joint and several liability, as it is applied to the instant case, is a judicially established rule. As such, it is our responsibility to address it in a manner that will establish sound logical justice for all parties. In my view that can best be achieved by at least eliminating joint and several liability for defendants whose negligence is less than that of the plaintiff.

The opinion of the court was delivered by

*402MUIR, Jr., J.A.D.

In this personal injury action, the trial court denied the request of J.J.A.M.M., Inc., doing business as Club 35 (Club 35), to instruct the jury to compare the negligence of the club, the negligence of the plaintiff, and the intentional conduct of an unknown defendant, John Doe, for the purposes of apportioning liability under the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, et seq. (Act). The jury found Club 35 liable for the failure to protect the. plaintiff, a patron of the club, from an assault by the unknown defendant who was also a patron of the club. It awarded plaintiff $40,000 in compensatory damages. Club 35 appeals asserting, among other things, the trial court erred in denying its request. We conclude the jury should not have been instructed to consider the intentional conduct of the unnamed-unknown defendant for the purposes of comparing fault under the Act. We also conclude the record discloses no basis for requiring the jury to consider plaintiffs conduct in its fault allocation. Accordingly, we affirm.

I.

Club 35 provides music, dancing, and a soda bar for persons 18 to 21 years of age on the second floor of a building that has an adult bar on the first floor. The dancing area is approximately 40 feet by 30 feet with a stage on one side. The club has overhead lighting, which includes a rarely used strobe (flashing) light. The switch to the strobe light is in a room with a locked door. Only club employees have keys to the door.

The club employs personnel to maintain order and “provide safety to the patrons.” The personnel are essentially young, muscular men dressed in matching outfits that include jackets identifying them as Club 35 staff. The club operator testified these young men (bouncers) are present to intervene if any problems arise. Two are located on the stage and two on opposite sides of the dance floor. These four bouncers sit on bar stools near the dance floor. They are placed, according to *403the operator, so “they’re visible to watch if anybody’s doing anything.” The operator testified all the bouncers are specifically responsible for watching the dance floor to stop “fooling around[,] ... unordinary type dancing or kicking, waving arms around or whatever, what might be damage [sic] to the customer____” All bouncers have the responsibility to walk back and forth across the dance floor to assure crowd control.

On the evening of January 9, 1988, plaintiff, his brother, and three friends went to Club 35.1 After being approved for admission by the underage facility manager, defendant Melvin Meszaros, plaintiff, and his companions paid their admission and began dancing. The dance floor was very crowded— “packed elbow to elbow.”

After dancing for about twenty minutes, plaintiff and his companions went to the soda bar area to cool off. While there, another male patron walked by a female patron and pinched her. The female, who at the time was talking to one of the bouncers, turned and accused plaintiff. Plaintiff denied he had pinched her. Later, the female again made the accusation, and plaintiff responded by saying he was sorry but he had not done it. The same bouncer then “gave [plaintiff] a dirty look” and suggested plaintiff and his friends leave. Plaintiff did not interpret this to mean leave the club but just to leave the vicinity of the female. Plaintiff and his companions returned to their dancing.

A few minutes later, plaintiff sustained the injury that gave rise to the lawsuit. Plaintiff’s companions testified that four young men, two coming from the stage and two others from sides of the dance floor, met next to the stage. None of the four wore the dress of the bouncers. The four then began to cross the dance floor. At the same time the strobe light was *404turned on making it hard to see. The four proceeded across the floor toward plaintiff with the dancers separating as the men pushed their way through. One of plaintiffs companions testified he was pushed aside. The men left an open path in the dance floor crowd. As the four reached the plaintiff, who had his back to them, one said, “Why’d you pinch my girl’s ass?” As plaintiff turned, the speaker punched plaintiff in the face. Plaintiff dropped to the floor bleeding profusely from the nose. Although the bouncers on the stage had a clear view of the floor and the four men crossing it, none interceded before or after the assault and none offered any assistance.

With assistance of his companions, plaintiff went to a bathroom on the first floor of the club. The injury made plaintiff almost unrecognizable. Plaintiff’s nose was pushed to the right side of his face. Blood covered plaintiff and areas around him.

Shortly after plaintiff arrived in the bathroom, Melvin Meszaros appeared with three bouncers. Plaintiff’s companions asked that a rescue squad and the police be called. They also asked for a towel. Instead of offering assistance, Meszaros took plaintiff by the arm and ushered him out of the building. At the same time, two bouncers carried plaintiff’s emotionally distraught brother outside.

As plaintiff and his companions stood outside, a bouncer approached. Plaintiff recognized him as the bouncer who was talking to the female when she got pinched. The bouncer said, “I see you guys got your asses kicked.” When asked why plaintiff’s attacker also had not been removed from the club, the bouncer responded, “[T]he other guy’s got juice____”

Plaintiff needed surgery to repair his nose. The operating doctor described the septum as so badly damaged it does not provide adequate stability for the nose. Plaintiff’s nose contains a scar and a permanent deviation to the right as a result of the incident.

*405Plaintiff’s complaint sought damages from Club 35 and the unnamed intentional tortfeasor, as well as from unnamed employees of the club. The complaint alleged, alternatively, negligent or intentional conduct on the part of Club 35 and its one named and other unnamed employees. Club 35’s answer raised defenses that negligent conduct of others caused plaintiff’s injuries but did not assert comparative fault defenses.

II.

In Blazovic v. Andrich, 124 N.J. 90, 107, 590 A.2d 222 (1991), decided after the trial in this case, the Supreme Court held the Act applies to conduct characterized as intentional. It ruled a jury must be instructed to compare the fault of intentional tortfeasors with that of negligent wrongdoers for the purpose of apportioning liability under the Act. See N.J.S.A. 2A:15-5.1. The Court based its ruling on the premise that parties causing an injury should be liable in proportion to their relative fault. Blazovic v. Andrich, supra, 124 N.J. at 109-10, 590 A.2d 222.

Blazovic has a fact context somewhat similar to this case. Blazovic sought compensatory damages for injuries he sustained in a parking lot of the defendant restaurant when he was assaulted by five defendants who had been patrons of the restaurant. The evidence suggested comments made by Blazovic precipitated the assault. Blazovic held the fault of all parties, Blazovic, the restaurant, and the five assaultive defendants, who settled with Blazovic prior to trial, should be compared for purposes of the Act.

Blazovic rested his claim against the restaurant proprietor, as plaintiff rests his claim against Club 35, on the holding in Butler v. Acme Markets, Inc., 89 N.J. 270, 275, 445 A.2d 1141 (1982). Butler recognized that the “proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises on that invitation to provide a reasonably safe place to do that which is within the scope of the invitation.” Id. *406The duty extends to reasonably foreseeable dangers which include intentionally harmful acts of a third party. Id. at 280, 445 A.2d 1141. The duty is violated when a proprietor fails to exercise reasonable care to discover intentionally harmful acts of third parties are being done or are likely to be done, or to give warning adequate to enable patrons to avoid the harm, or otherwise to protect them against the harm. Id. (quoting Restatement (Second) of Torts § 344, at 223-24 (1965)).

III.

Club 35 asserts the trial court erred when the court rejected its request to instruct the jury to determine the relative percentages of fault of the plaintiff, the fictitiously named and never identified intentional tortfeasor who assaulted plaintiff, and Club 35. It contends Blazovic dictates such a result. We disagree.

A.

We turn first to the issue of whether the trial court erred in refusing to instruct the jury to compare the fault of the unnamed intentional tortfeasor in assessing liability. N.J.S.A. 2A:15-5.1 requires comparison of plaintiff’s negligence with the negligence, now fault as the result of Blazovic, of the person or persons against whom recovery is sought. N.J.S.A. 2A:15-5.2 requires the trier of fact to return a special verdict on “[t]he percentage of negligence of each party ” with “the total of all percentages of negligence of all the parties to the suit” being fixed at 100%. Id. (emphasis added).

We conclude the plain and ordinary meaning of the statutory language precludes inclusion of a fictitiously named tortfeasor from the Act’s commands for apportioning fault. The plain language of sections 5.1 and 5.2 make the negligence of the person or persons against whom recovery is sought and the negligence of each party or parties to the suit the prerequisites to apportioning fault. A fictitious person is not someone *407against whom recovery can be sought because the fictitious person rule, R. 4:26-4, and due process prevent entry of judgment against a person designated by a fictitious name.

Also, a fictitious person is not a party to a suit. The person plaintiff identifies as a fictitious defendant only becomes a party to the suit when the defendant’s true name is substituted in an amended complaint and service is effected. See Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120, 299 A.2d 394 (1973); Stegmeier v. St. Elizabeth Hosp., 239 N.J.Super. 475, 484-86, 571 A.2d 1006 (App.Div.1990). It is at the point of service on the true defendant that a court gains jurisdiction, consonant with due process, and a person becomes a party to a suit. It is at that point when the Act requires the person’s conduct be compared for the purposes of apportioning liability and not before.

This result is supported by our holding in Ramos v. Browning Ferris Ind. of So. Jersey, Inc., 194 N.J.Super. 96, 476 A.2d 304 (App.Div.1984), rev’d on other grounds, 103 N.J. 177, 510 A.2d 1152 (1986). There we stated,

A truer verdict is more likely to be returned where the fact finder’s attention is ultimately fixed on the conduct of the parties who will be affected by the verdict____ With [the] necessary exception [of assessing the negligence of a settling tortfeasor with that of a non-settling tortfeasor for contribution purposes] there is no more reason to have a fact finder assign a percentage of negligence to someone who is not affected by the verdict than to assign a percentage of negligence to acts of God (such as the snow in this case) or a myriad of other causative factors that may have contributed to the happening of an accident. [Id. 194 N.J.Super. at 106, 476 A.2d 304]

By analogy, our reasoning is consistent with the Supreme Court’s holding in Young v. Latta, 123 N.J. 584, 589 A.2d 1020 (1991), and our holding in Tefft v. Tefft, 192 N.J.Super. 561, 471 A.2d 790 (App.Div.1983). In Young the Supreme Court ruled that the negligence of a settling party should be compared by the trier of fact with that of a non-settling party so the trial court can calculate the latter’s credit regardless of whether the non-settling party pursued the credit by way of cross claim for *408contribution. Young v. Latta, supra, 128 N.J. at 595-96, 589 A.2d 1020.

Tefft recognized the effect the Act had on cross claims for contribution and ruled the trial court, as a matter of law, should dismiss a non-settler’s cross claim for contribution as the result of a plaintiff’s settlement with another defendant, although the credit survives. Tefft v. Tefft, supra, 192 N.J.Super. at 570, 471 A.2d 790. We concluded once a defendant settles with plaintiff, the only reason for submitting the question of a settling defendant’s liability to the fact finder is to provide the basis for calculating the credit to which a non-settler is entitled. See id. at 571, 471 A.2d 790.

The Young and Tefft holdings represent the manner in which the Act is applied. Both suggest we look to allocate fault under the Act only between persons who are parties to the litigation whose fault must be assessed for purposes of judgment.

Blazovic does not dictate otherwise. Blazovic required fault be apportioned among joint or concurrent tortfeasors regardless of the nature of the fault. It did not specifically rule on whether the Act required apportioning fault of an unnamed party. The Court did, however, suggest resolution of the issue in its response to a concern of an Appellate Division dissent. That concern suggested the liability formula enacted in N.J.S.A. 2A:15-5.3a could limit a plaintiff’s recovery where there are multiply liable tortfeasors if an intentional tortfeasor is deemed to have greater than 40% fault and is unable to pay the judgment. The Court responded, “We reject that [concern] because it ignores the principle that the parties causing an injury should be liable in proportion to their relative fault.” Id. 124 N.J. at 110, 590 A.2d 222 (emphasis added). The unnamed intentional tortfeasor, John Doe, is not a party as required by the statute. To sanction inclusion of that tortfeasor in the fault allocation-liability format of the Act would engender a result beyond its plain language.

*409Our review of the decisional law of other jurisdictions offers little persuasive authority on resolution of the issue for our purposes, particularly in light of the language of this State’s comparative negligence law. See 2 Matthew Bender’s Comparative Negligence Law and Practice §§ 13.20, 13.90 (1988). Normally, Wisconsin law could be considered a resource for guidance. See Van Horn v. William Blanchard Co., 88 N.J. 91, 97, 438 A.2d 552 (1981); but see id. at 103-04, 438 A.2d 552 (Handler, J., dissenting). However, amendments to our law not encompassed in the Wisconsin Comparative Negligence Act weaken the significance the decisional law of that state’s highest court may have. Moreover, the issue does not seem settled in that state. See Reiter v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980) (Wisconsin Supreme Court critical of comparing fault of plaintiff with all defendants where one was dismissed from the case but believed issue better resolved by legislature); but see Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis.2d 42, 227 N.W.2d 660 (1975) (a jury in apportioning negligence is required to consider negligence of all parties whether or not they are parties to the action). Besides, this court has rejected the reasoning in Connar. See Ramos v. Browning Ferris Ind. of So. Jersey, Inc., supra, 194 N.J.Super. at 107, 476 A.2d 304.

Furthermore, there are strong policy reasons that dictate against including the absent or unnamed tortfeasor from the fact finder’s negligence apportionment. The amount of plaintiff’s judgment and amount of defendant’s liability will vary depending upon whether the absent-unnamed person’s negligence is considered by the fact finder. Defendant, however, has a greater incentive to join and name additional potential tortfeasors or to see that they are identified. That greater incentive is the percentage-liability formula. See Young v. Latta, supra, 123 N.J. at 592, 589 A.2d 1020. That formula proscribes contribution where fault falls below a certain percentage. See N.J.S.A 2A:15-5.3. Thus, defendant has significant incentive in naming and joining multiple tortfeasors so as *410to create the potential for diminishing deféndant’s percentage of liability to a level that avoids contribution. Given that incentive, it is appropriate to place upon defendant the burden of finding and naming any additional person since it is to defendant’s advantage to spread the risk or defeat the claim. See National Farmers Union Prop. and Cas. Co. v. Frackelton, 662 P.2d 1056, 1060 (Colo.1983).

These policy dictates are particularly poignant here. The evidence recited reflects Club 35 failed to protect plaintiff in the manner the law requires and had the best opportunity to identify the intentional tortfeasor who assaulted plaintiff. Indeed, the evidence suggests the bouncers knew the intentional tortfeasor, yet Club 35 chose to ignore that knowledge and not identify him. Interestingly, Club 35 chose also not to identify its bouncers who were also unnamed defendants, although the bouncers’ conduct might have affected the jury’s evaluation of Club 35’s responsibility. Consequently, and quite apart from our statutory construction, in absence of language demonstrating a contrary legislative purpose, we are satisfied the most equitable result, in light of the circumstances here, is to preclude the unnamed intentional tortfeasor’s conduct from the fault comparison for purposes of allocating liability.

B.

Finally, we turn to the issue of apportioning fault of the plaintiff. The Act requires the trier of fact to translate common liability of joint or concurrent tortfeasors, including plaintiff, into a percentage of causal fault that contributed to plaintiff’s injuries. Plaintiff's conduct is compared only when it is wrongful and causally contributed to the injuries sustained. The record evinces nothing from which a reasonable jury could conclude the plaintiff’s conduct in any way contributed to the injuries he sustained. See Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706 (1969); Wagner v. Deborah Heart & Lung Center, 247 N.J.Super. 72, 81, 588 A.2d 860 (App.Div.1991).

*411c.

We find no merit to plaintiffs cross-appeal charging trial court error in the dismissal of his punitive damage demand. See R. 2:ll-3(e)(l)(E). We agree the facts here do not entitle plaintiff to recover punitive damages from Club 35. See Di Giovanni v. Pessel, 55 N.J. 188, 260 A.2d 510 (1970).

IV.

In conclusion we hold the fault of a fictitious person may not be considered when apportioning negligence among parties to the lawsuit. The Act’s plain language precludes fault allocation because a fictitious defendant is not a party to the suit and not one against whom recovery is sought. Moreover, we find sound policy reasons applicable to the facts of this case dictate against allocating fault of the unnamed intentional tortfeasor. Also, we find no evidence that required the trial court to instruct the jury to consider the contributory negligence of the plaintiff.

The judgment of the trial court is affirmed.