[598 P.2d 21] David H. Carmichael, of Carmichael, McNiff & Patton, Cheyenne, and John E. Stanfield, of Smith, Stanfield & Scott, Laramie, signed the briefs, and David H. Carmichael, Cheyenne, appeared in oral argument on behalf of appellants.

David D. Uchner and Nick Kalokathis, of Lathrop & Uchner, P.C., Cheyenne, signed the brief and David D. Uchner, Cheyenne, appeared in oral argument on behalf of appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellants-plaintiffs appeal from a summary judgment in favor of appellee-defendant (Reiman-Wuerth Company) in which the District Court determined that such be final and that there was no just reason for delay in the entry of it. Appellee, Reiman-Wuerth Company, was only one of several defendants in an action for alleged damages resulting from a multi-vehicle collision. The driver and owner of one of the vehicles involved in the collision, James W. Grandpre (also a defendant), was an employee of appellee. Appellants state the issue on appeal to be: "Is there a genuine issue of material fact concerning the vicarious liability of Appellee for the acts of its servant (Grandpre) which caused damage to the (appellants)?" The trial court found that there was no genuine issue as to any material fact and that appellee was entitled to a summary judgment as a matter of law. We affirm.

Grandpre was employed as a carpenter by appellee on a construction jobsite in Cheyenne. On January 6, 1977, Grandpre requested permission to leave the job for the purpose of depositing his paycheck before 3:00 p. m. in a local bank so that some of his outstanding checks would not be dishonored. Also, he stated that he felt his ex-wife's employment by the bank might be jeopardized if his account were overdrawn. He was granted the requested permission by his supervisor.

It was the policy of appellee to allow employees to take time off for such personal activities, but it expected employees to take only the time necessary to accomplish such, and it did not pay employees for the time involved therein. Grandpre made his request and made his trip to the bank under these conditions. He drove his own automobile to the bank, made the deposit, and [598 P.2d 22] was involved in the collision while returning to the jobsite. He had never driven his own automobile on appellee's business, but was furnished a vehicle owned by appellee for such purpose.

The foregoing facts are not in dispute. The dispute arises over appellants' position: (1) that the trip was, at least in part, for the benefit of appellee or was employment related inasmuch as it contributed to Grandpre's "happiness" and thus made him a better and more efficient employee all to appellee's benefit as evidenced by appellee's policy which made the trip possible; (2) that appellee exercised control over the trip by requiring Grandpre to return to work immediately after completing his personal activity; and (3) that the determination of these two things (and thus the determination of whether or not the trip was in the scope of employment) was a question of fact for the jury. The fallacy of appellants' position lies in a misunderstanding or misapplication (1) of the definition of the term "scope of employment" and (2) of those issues in this matter that are questions of fact.

The meaning and application of the term "scope of employment" has necessitated considerable judicial attention. The general principles relative thereto are set out in 1 Restatement of Agency 2d (ALI 1958), pp. 504-524, as follows:

§ 228. General Statement

"(1) Conduct of a servant is within the scope of employment if, but only if:

"(a) it is of the kind he is employed to perform;

"(b) it occurs substantially within the authorized time and space limits;

"(c) it is actuated, at least in part, by a purpose to serve the master, and

"(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

"(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

§ 229. Kind of Conduct within Scope of Employment

"(1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

"(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

"(a) whether or not the act is one commonly done by such servants;

"(b) the time, place and purpose of the act;

"(c) the previous relations between the master and the servant;

"(d) the extent to which the business of master is apportioned between different servants;

"(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

"(f) whether or not the master has reason to expect that such an act will be done;

"(g) the similarity in quality of the act done to the act authorized;

"(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

"(i) the extent of departure from the normal method of accomplishing an authorized result; and

"(j) whether or not the act is seriously criminal.

§ 230. Forbidden Acts

"An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.

§ 231. Criminal or Tortious Acts

[598 P.2d 23] "An act may be within the scope of employment although consciously criminal or tortious.

§ 232. Failure to Act

"The failure of a servant to act may be conduct within the scope of employment.

§ 233. Time of Service

"Conduct of a servant is within the scope of employment only during a period which has a reasonable connection with the authorized period.

§ 234. Area of Service

"Conduct is within the scope of employment only in the authorized area or in a locality not unreasonably distant from it.

§ 235. Conduct Not for Purpose of Serving Master

"An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.

§ 236. Conduct Actuated by Dual Purpose

"Conduct may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person.

§ 237. Re-entry into Employment

"A servant who has temporarily departed in space or time from the scope of employment does not re-enter it until he is again reasonably near the authorized space and time limits and is acting with the intention of serving his master's business."

In the most recent case in which this court considered the term "scope of employment," we said that a person was acting within the scope of employment:

"If, at the time of the accident, the employee is engaged in furthering the employer's business interests, and with respect thereto the employer has the right to control the details of the work and to discharge the employee for failing to follow orders without incurring liability * * *." Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034, 1043 (1978).

The term "scope of employment" therefore has a distinct meaning by law. Although generally the determination as to whether or not one is acting within the scope of employment is a question of fact for the jury, Sun Land and Cattle Co. v. Brown, Wyo., 394 P.2d 387 (1964); Barnes v. Fernandez, Wyo.,526 P.2d 983 (1974), the determination of the definition of it or the standard under which it is ascertained is a question of law for the court. Durham v. State, Wyo., 422 P.2d 691 (1967); Brennan v. Leshyn, 51 Ill.App.2d 132, 201 N.E.2d 167 (1964); 75 Am.Jur.2d, Trial, § 701; 88 C.J.S. Trial § 318. Accordingly, if this case were presented to the jury, the court would have to instruct it sufficiently as to the meaning of the term "scope of employment" so that the jury could properly apply the facts under the law.

When we examine the facts of this case to which these instructions would apply, we find that this is one of the cases which come within the exception enunciated in Combined Insurance Company of America v. Sinclair,supra, to the general proposition on this point, i. e., that the scope of employment issue "is ordinarily a question of fact for the jury and becomes a question of law only when but one reasonable inference can be drawn." The only reasonable inference that can be drawn from the facts of this case under the applicable law is that Grandpre was not acting within the scope of his employment by appellee at the time of the collision.

In focus on this point, we note that in addition to the previously recited undisputed facts, it is not contested that appellee's policy to allow its employees time off for personal errands does have some benefit in contributing to the "happiness" of the employees. [598 P.2d 24] Nor is it contested that appellee expected and directed employees to use only such time as necessary to complete the personal errands. The only contest, then, is whether or not the policy and direction, without more, place the employee in the scope of employment. To accept appellants' contention that they do would also require acceptance of the contentions that policies for employee "happiness" by allowing vacations, no Saturday work, or lunch hours, coupled with directions to return to work immediately after the end of vacation, or after one hour for lunch, or at 8:00 a. m. each working day, would place the employees in the scope of employment, without more, while on vacation, on Saturdays, during lunch hours in fact, at all times. Under the legal definition of "scope of employment" a reasonable mind could not find activities of these types, without more, to be within the scope of employment.

We reach the conclusion that Grandpre was not within the scope of employment by appellee at the time of the incident even under the oft-repeated standard by which we review a denial or grant of a summary judgment on appeal: that the moving party has the burden of showing absence of a genuine issue of a material fact, Timmons v. Reed, Wyo., 569 P.2d 112 (1977); and that we look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from facts contained in affidavits, exhibits, and depositions, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976); Timmons v. Reed, supra.

Grandpre's conduct at the time of the collision was not actuated in any part by a purpose to serve appellee (§ 228, 1 Restatement of Agency 2d, supra); Grandpre's errand was not done with intention to perform it as a part of or incident to a service on account of which he was employed (§ 235, 1 Restatement of Agency 2d, supra); and Grandpre was not furthering the business interests of appellee in any part at the time of the collision (Combined Insurance Company of America v. Sinclair, supra).

Grandpre was not acting in the scope of employment by appellee at the time of the collision.

Affirmed.

[874 P.2d 126] Thomas R. Patton, Lynn C. Harris, Provo, and Vicki Rinne, Highland, for plaintiffs and petitioners.

Mark J. Williams, Salt Lake City, for defendants and respondents.

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 liable 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 building, 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 [874 P.2d 127] property. 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 liable 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 Burns' 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 all 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 liable 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 falling 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 al., 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 wholly 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. [874 P.2d 128] Christensen 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 Burns 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. Burns 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 substantially [874 P.2d 129] 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 Swenson'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).

[874 P.2d 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 (1953), 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.

[1] We note that in reaching its decision, the court of appeals construed Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), as establishing a literal approach to the second Birkner criterion. The court of appeals interpreted Clover's application of the second Birkner criterion as turning on the fact that the employee's conduct took place " 'on his employer's premises.' " Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992) (quoting Clover, 808 P.2d at 1041). Relying on that language, the court of appeals concluded that because Swenson's accident did not occur on "the premises of the Geneva Steel Plant[,]" the accident necessarily did not occur substantially within the ordinary spatial boundaries of her employment. Id.

We did not intend to establish such a bright-line rule in Clover. The Birkner criteria cannot be rigidly applied to every fact pattern. Some flexibility is required to address situations, like the instant case, where the employee's conduct is technically outside the physical boundaries of her employer's premises but arguably substantially within the ordinary spatial boundaries of the employment.

[2] Moreover, as we have already noted, the record indicates that Burns was aware that Gate 4 guards occasionally traveled to the Frontier Cafe for lunch and that the company may have tacitly sanctioned the practice. Reasonable minds could differ as to whether such a tacit sanction brought the Frontier Cafe substantially within the ordinary spatial boundaries of Swenson's employment.

[3] We acknowledge the court of appeals' concern that ruling in favor of Swenson could result in "[e]very off-site location regularly patronized by an employee for personal purposes [to] potentially be considered within the ordinary spatial boundaries of the employment." Christensen, 844 P.2d at 995. However, we note that this case is before us on a petition to review the court of appeals' affirmance of summary judgment. Thus, our opinion establishes only that, under the facts of this case, reasonable minds may differ as to whether Swenson's accident occurred substantially within the ordinary spatial boundaries of her employment. We do not hold that all lunch breaks, no matter where or when taken, fall within the scope of employment. Furthermore, we think that lines can successfully be drawn to avoid the court of appeals' concerns.

[129 Cal.Rptr.2d 677][105 Cal.App.4th 801] Law Offices of Robert M. Tessier and Robert M. Tessier, Calabasas, for Plaintiff and Appellant.

Booth, Mitchel & Strange, William F. Rummler and Christopher C. Lewi for Defendant and Respondent.

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]

[129 Cal.Rptr.2d 678] Appellant sued Hernandez (who is not a party to this appeal) and respondent Minimed alleging a single cause of action for negligence for her [105 Cal.App.4th 802] personal 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.)

[105 Cal.App.4th 803] "[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 [129 Cal.Rptr.2d 679] 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 [105 Cal.App.4th 804] engaged 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 [129 Cal.Rptr.2d 680] 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 iron-clad, 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: [105 Cal.App.4th 805] that 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, 47 Cal.Rptr.2d 478, 906 P.2d 440, 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, 235 Cal.Rptr. 641, italics omitted.) Applying such principles, Harris, supra, 120 Cal.App.3d 157, 174 [129 Cal.Rptr.2d 681] Cal.Rptr. 452, 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, 174 Cal. Rptr. 452, italics added & fn. omitted.)

Moreover, as demonstrated by the italicized language in Harris imposing liability for an after-hours accident away from the job site, 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 [105 Cal.App.4th 806] is 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." (Italics added.) (Childers, supra, 190 Cal.App.3d at pp. 804-805, 235 Cal. Rptr. 641.)

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, 235 Cal.Rptr. 641 [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 [129 Cal.Rptr.2d 682] 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 footnote 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, 235 Cal.Rptr. 641.) 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 [105 Cal.App.4th 807] court 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.

We concur: COOPER, P.J., and BOLAND, J.

[1] Respondent objected below to admission of Hernandez's statement to the officer because it is contained in an inadmissible accident report. (Veh.Code, § 20013.) Respondent failed, however, to get a ruling from the trial court on the objection, thus failing to preserve the issue for appeal. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236-238, 114 Cal.Rptr.2d 151 [evidentiary objections waived on appeal if the trial court does not rule on them]; but see Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419-1420, 267 Cal.Rptr. 819 [evidentiary objections preserved even if trial court does not rule on them].)

[2] Appellant argued as an alternative theory to support her single cause of action that Minimed was directly negligent, but our reversal on vicarious liability means we cannot resolve that theory. (See Code Civ. Proc., § 437c, subd. (f)(1) [may not grant summary adjudication of an issue when it does not dispose of a complete cause of action].) As an aside, we note that even if one assumes respondent bore an independent duty to protect the general public from Hernandez, her supervisors asked about her ability to drive and offered her medical assistance, but she insisted she was fine and declined their help. Short of taking her car keys from her (which we are not implying should have happened), we do not see what more the supervisors could reasonably have done to stop Hernandez from getting behind the wheel. Accordingly, if appellant's direct negligence theory had come to us as a separate cause of action, we would have handled it with less forbearance than its procedural posture currently compels.

[3] Respondent objected to admission of Hernandez's belief that her exposure to the pesticide caused her symptoms. According to respondent, such a belief constituted an expert opinion beyond Hernandez's abilities. Respondent failed, however, to obtain a ruling from the trial court on its objection. As the court did not rule on the objection, it was not preserved for appeal. (See fn. 1, ante.)

[24 Wn.App. 275] [600 P.2d 680] Kennedy, Moore & Twisselman, James D. Twisselman, Everett, for appellants.

Lane, Powell, Moss & Miller, C. William Bailey, Seattle, for respondent.

CALLOW, Chief Judge.

The issue presented is whether the Washington rule which holds that an employer is not liable for an assault committed by an employee for his own purposes should be abandoned in favor of a rule which would impose liability on an employer when the employee injures a third party in a dispute arising out of the employment.

The facts are agreed upon by the parties. On July 23, 1976, Elzear Kuehn was driving his wife's automobile southbound on Interstate 5. At approximately 6:30 p. m., the Kuehns were a short distance south of Seattle, in the traffic lane next to the outside lane. As the Kuehns' automobile proceeded down a hill, a truck tractor-semitrailer combination in the outside lane started to pass them. The truck was owned by Inter-City Auto Freight, Inc., and [24 Wn.App. 276] operated by Richard K. White. When the trailer of the combination pulled even with the Kuehns' automobile, the rig swerved left into the [600 P.2d 681] Kuehns' traffic lane. Mrs. Kuehn screamed "He's going to crash us. He's going to crash us." Mr. Kuehn applied his brakes and drove into the lane to his left.

Thereafter, Mr. Kuehn stepped on the gas, caught up with the truck, and motioned to White to pull over onto the shoulder of the highway. White shook a fist in the direction of the Kuehns' automobile and weaved towards the Kuehns, forcing them over into the third lane. Mr. Kuehn again accelerated to catch up with the truck. White, followed by the Kuehns, drove onto the right-hand shoulder of the road. White crammed on the brakes of the truck and Kuehn had to brake hard to keep from driving into the rear of the truck. When the truck stopped, Kuehn parked behind it so that both he and Mrs. Kuehn could see the driver's door of the truck.

White got out of the cab of the truck and walked towards Kuehn's car carrying a 2-foot-long metal pipe owned by Inter-City. Mr. Kuehn got out of his car and asked White why he was carrying the pipe. White replied, "That's my equalizer." Mr. Kuehn asked White why he had attempted to force the Kuehns' automobile off of the road, to which White replied, "There is no son of a bitch going to give me the finger." White then swung the pipe at Kuehn's head, grazing the side of his face and knocking off Kuehn's glasses. As Kuehn bent over to pick up his glasses White hit him on the side of the head with the pipe, knocking Kuehn to his hands and knees, and when Kuehn tried to get up White hit him again on the head.

Mrs. Kuehn got out of the automobile and asked White, "What are you trying to do? Kill him?" White replied, "There's no son of a bitch going to give me the finger." White then got back into the truck and drove off, and Mrs. Kuehn took Mr. Kuehn to a hospital. Before this incident, White's record with his employer, Inter-City, had been good.

[24 Wn.App. 277] Later, White was convicted of assault. Mr. and Mrs. Kuehn then filed a civil action against White and Inter-City Auto Freight, Inc. Inter-City's subsequent motion for summary judgment of dismissal was granted. The Kuehns appeal.

A master is responsible for the servant's acts under the doctrine of respondeat superior when the servant acts within the scope of his or her employment and in furtherance of the master's business. Where a servant steps aside from the master's business in order to effect some purpose of his own, the master is not liable. Kyreacos v. Smith, 89 Wash.2d 425, 429, 572 P.2d 723 (1977) (murder); Hein v. Chrysler Corp., 45 Wash.2d 586, 599, 277 P.2d 708 (1954) (interference with contract); Langness v. Ketonen, 42 Wash.2d 394, 399, 255 P.2d 551 (1953); Westerland v. Argonaut Grill, 185 Wash. 411, 414-15, 55 P.2d 819 (1936); Nolan v. Fisher Co., 172 Wash. 267, 269, 19 P.2d 937 (1933); Estes v. Brewster Cigar Co., 156 Wash. 465, 473, 287 P. 36 (1930); DeLeon v. Doyhof Fish Prods. Co., 104 Wash. 337, 343, 176 P. 355 (1918); Matsuda v. Hammond, 77 Wash. 120, 123, 137 P. 328 (1913). As stated in Hein v. Chrysler Corp., supra 45 Wash.2d at page 600, 277 P.2d at page 716:

An employee who willfully and for his own purposes violates the property rights of another . . . is not acting in the furtherance of his employer's business. Consequently, his employer cannot be held liable under the doctrine of Respondeat superior for the employee's wrongful act. The same rule should apply to any tort, regardless of its nature.

See also Annot., 34 A.L.R.2d 372 (1954); F. Harper & F. James, Law of Torts § 26.9 (1956); W. Prosser, Law of Torts § 70 (4th ed. 1971); W. Seavey, Handbook of the Law of Agency § 89C (1964).

If the assault by the servant is occasioned solely by reason of the servant's ill will, jealousy, hatred, or other ill feelings, independent of the servant's duty, then the master is not liable. E. g., Linck v. Matheson, 63 Wash. 593, 596, 116 P. 282 (1911). To fall within the scope of employment, [24 Wn.App. 278] the assault must be committed by authority of the employer, such authority being either expressly conferred or fairly implied from the nature of the employment [600 P.2d 682] and the duties incidental thereto as where the servant is authorized to maintain discipline or the character of the employment is liable to create disputes and result in breaches of the peace. An abuse or excessive exercise of the servant's authority in such situations does not relieve the master of liability. Langness v. Ketonen, supra 42 Wash.2d at 399-400, 255 P.2d 551; Brazier v. Betts, 8 Wash.2d 549, 556-60, 113 P.2d 34 (1941).

Where the servant's intentionally tortious or criminal acts are not performed in furtherance of the master's business, the master will not be held liable as a matter of law even though the employment situation provided the opportunity for the servant's wrongful acts or the means for carrying them out. In Kyreacos v. Smith, supra, a Seattle police detective killed a man whom he suspected of murdering a complaining witness in a case in which the detective had arrested the decedent for a credit card forgery. The detective's conviction of first-degree murder was affirmed on appeal in State v. Smith, 85 Wash.2d 840, 540 P.2d 424 (1975). In the subsequent wrongful death action brought by the decedent's widow, it was held that the City of Seattle was not liable under the doctrine of respondeat superior as a matter of law and that summary judgment was appropriate. The court stated that "if a servant steps aside from his master's business and, in order to effect some purpose of his own, commits an assault, the master is not liable." Kyreacos v. Smith, supra 89 Wash.2d at 429, 572 P.2d at 725. The court reasoned that the commission of premeditated murder by a policeman precluded any possibility that he was acting within the scope of his employment.

Recovery against the master has uniformly been denied in those instances where a servant-truck driver and the plaintiff collided, an altercation followed, and the driver lost his temper and struck the plaintiff. F. Harper & F. James, Supra § 26.9, at 1392 n. 16; W. Prosser, Supra § 70, [24 Wn.App. 279] at 464. Accord, Restatement (Second) of Agency § 245, comment f, Illustration 8 (1958).

The plaintiffs urge an abandonment of these enunciated principles of respondeat superior. In their stead, the plaintiffs would have us embrace the rule adopted in California. Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525 (1947); Pritchard v. Gilbert, 107 Cal.App.2d 1, 236 P.2d 412 (1951). In those cases involving a servant's intentional assault, the California rule extends a master's liability to include risks inherent in or created by the enterprise for the reason that the master is thought to be best able to assume and spread the risk. A risk may be said to inhere in or be created by a business when "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," or it is typical of the employer's business. Rodgers v. Kemper Constr. Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143, 148-49 (1975). The risks of an employer's enterprise include those faults of human nature which may surface when a servant has contact with a third party. Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5, 7-8 (1946).^[1] We note that the California rule is based in large part upon section 2338 of the California Civil Code, which makes a principal liable for the wrongful acts of the agent committed in and as a part of the principal's [600 P.2d 683] business. We [24 Wn.App. 280] find no comparable statutory directive in Washington and decline to impose a rule, the ramifications of which would be far-reaching and which would rearrange, across the state, the responsibility of employers for the conduct of their employees. Such a redirection of social policy is, more appropriately, the function of the legislature.^[2]

A party is entitled to summary judgment when the record shows 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. Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963). Considering all of the evidence submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party, we must determine if reasonable people might reach different conclusions from the evidence and inferences therefrom. If so, summary judgment must be denied. CR 56(c); Jacobsen v. State, 89 Wash.2d 104, 108-09, 569 P.2d 1152 (1977). Whether a tortious act was one performed within the scope of the servant's employment for which the master would consequently be held liable is a determination which necessarily depends upon the particular circumstances and facts of the case. This question is ordinarily one for the trier of [24 Wn.App. 281] fact, although certain fact patterns may establish as a matter of law that the master is not liable. See Kyreacos v. Smith, supra ; Restatement (Second) of Agency § 228, comment d (1958).

Here, as a result of White's driving, the Kuehns attempted to catch up with White's truck. Both then drove off the road. White then assaulted Kuehn because of his personal anger towards Kuehn and not because of any intent to serve the employer.

The judgment is affirmed.

FARRIS and RINGOLD, JJ., concur.

[1] As stated in Fields v. Sanders, 29 Cal.2d 834, 839, 180 P.2d 684, 172 A.L.R. 525 (1947), quoting from Andrews v. Seidner, 49 Cal.App.2d 427, 121 P.2d 863, 864 (1942):

"Responsibility of the principal results from acts so committed even though they be contrary to the principal's explicit instructions or otherwise unauthorized, or malicious or wilful. In considering whether an unauthorized wrongful act of an agent is attributable to his principal, we cannot look to the nature of such act alone to see whether it was committed in and as a part of the transaction of the principal's business, but we must consider as well the activity of the agent on behalf of the principal in connection with which the act was committed. The inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal. Of course, where the agent, for however brief a space of time, has ceased to serve his principal, he alone is responsible for his acts during the period of such cessation. . . . "

[2] See Ira S. Bushey & Sons, Inc. v. United States, 276 F.Supp. 518 (E.D.N.Y.1967), Aff'd, 398 F.2d 167 (2d Cir. 1968). In Sandman v. Hagan, 261 Iowa 560, 154 N.W.2d 113 (1967), at page 569, 154 N.W.2d at page 118, 119, we find:

We are aware of the so-called modern trend to find liability in this class of cases on the basis that such wrongs are committed by the employee only because of the employment situation, and that since the employer has the benefit of the enterprise as between two innocent third parties, he is better able to bear the risk of loss. If he cannot altogether avoid such wrongs, he can at least minimize them. In those cases it is argued that a general sense of fairness requires that the employer, as the person interested and benefited by the business, rather than the persons who have no concern in or control over it, should bear the burden of such wrongs as incidental to such business. See Penas v. Chicago, M. & St. P. Ry. Co., 112 Minn. 203, 127 N.W. 926 . . . ; Harper, Torts, section 291, page 640; 45 Harvard Law Review 342. If employer liability is to be extended this far, we believe it should come from the legislature, and do not find that this concept has substantial support in judicial decisions.

[638 P.2d 162] Claude W. Martin of Brown, Drew, Apostolos, Massey & Sullivan, Casper, on behalf of appellant.

James R. McCarty, Casper, on behalf of appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

Appellant, The Sage Club, appeals a judgment entered against it in a lawsuit arising out of an altercation between a bartender employed at the club, Mr. Thyfault, and a customer, appellee David Leland Hunt. The trial court entered a default judgment against Mr. Thyfault and held The Sage Club liable under the theories of respondeat superior and negligence in continuing to employ Mr. Thyfault. Appellant asserts that it cannot be held liable for the intentional tort of its employee because the tort was personal to Mr. Thyfault and was not within the scope of employment.

We affirm.

I

A dispute took place over money which appellee had left on the bar. Appellee thought that someone, supposedly Thyfault, had taken more money than he was entitled to take for his drinks. Mr. Thyfault undoubtedly resented the insinuation, so he jumped over the bar and attacked appellee. Thyfault hit appellee in the face, breaking his nose and inflicting other bruises, and then threw appellee down the stairs, reinjuring his back.

This court has held that an employer may be held liable for the negligent acts of an employee acting within the scope of employment, Gill v. Schaap, Wyo., 601 P.2d 545 (1979); Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979); Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034 (1978); and Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189 (1933). We have not, however, had occasion to rule on whether an employer may be held responsible for the intentional tort of an employee. The majority rule, in fact the universally accepted rule, holds employers liable for the intentional torts of employees committed within the scope of employment. Prosser, Law of Torts, § 70, p. 464 (4th ed., 1971). The rule is a matter of economic and social policy, based both on the fact that the employer has the right to control the employee's actions and that the employer can best bear the loss as a cost of doing business. The Restatement (Second), Agency 2d § 245, p. 537 (1958), phrases the rule as:

"A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant."

We agree with the accepted rule and hold that an employer may be held liable for the intentional tort of an employee if the employee is acting within the scope of employment.

Appellant here contends that Mr. Thyfault was not acting within the scope of employment because the altercation which took place was a personal one between Thyfault and appellee. The question of whether an employee is acting within the scope of employment is one for the trier of fact, in this case the trial court, and becomes a question of law when only one reasonable inference can be drawn about the question from the evidence. Miller v. Reiman-Wuerth [638 P.2d 163] Co., supra, at 23. We think the evidence here was sufficient to show that Thyfault was acting within the scope of employment when he attacked appellee. We said in Combined Insurance Co. of America v. Sinclair, supra, at 1041, that in general the servant's conduct is within the scope of his employment, "if it is of the kind which he was employed to perform, occurs substantially within the authorized limit of time and space, and is actuated, at least in part, by a purpose to serve the master," citing Prosser, Law of Torts, supra, p. 461 (4th ed.). Here, Mr. Thyfault's duties included collecting money for drinks, and he lost his temper over that matter. His duties also included keeping order in the bar and removing disruptive customers, which Thyfault apparently tried to do by pushing appellee down the stairs.

Appellant relies on Lombardy v. Stees, 132 Colo. 570, 290 P.2d 1110 (1956), for the proposition that since the assault was purely personal, it was not within the scope of employment. In that case, however, the evidence showed that the only express instruction to the bartender was that if anyone got too much to drink he was not to be served further. The bartender there had no authority to act as a bouncer; Thyfault did, and his employment was of such a nature as to contemplate the use of force. Indeed, the owner of The Sage Club testified that Thyfault sometimes had to remove people from the club on a daily basis.

In addition to the facts set out in Combined Insurance Co. of America v. Sinclair, supra, an important factor in deciding a principal's liability for his agent's intentional torts is whether "the use of force is not unexpectable by the master." Restatement (Second), Agency 2d § 228(1)(d), p. 504 (1958). Where the nature of the employment is such that the master must contemplate the use of force by the servant, the master will be held liable for the willful act of the servant even though he had no knowledge that the act would take place. Jones v. Herr, 39 Or.App. 937, 594 P.2d 410 (1979). The employer need not have foreseen the precise act or exact manner of injury as long as the general type of conduct may have been reasonably expected. Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979). Some who frequent grogshops are not the most docile members of society. Where an employee is serving in this type of environment as a bartender, the master is usually responsible if the employee loses his temper and willfully injures a patron because the result is foreseeable in view of the servant's job.

This court will therefore not indulge in nice distinctions to determine whether the excessive force was motivated by personal reasons. It is appellant's misfortune to have hired a quarrelsome and violent bartender who in turn attacked a plaintiff experienced at collecting on injury claims. Appellant evidently allowed Thyfault to use force at his discretion, and he was performing work of the kind he was employed to perform. The assault occurred within the authorized limits of time and space and was motivated, at least partially, by a desire to serve the Sage Club. Appellant is consequently vicariously liable to Mr. Hunt under the doctrine of respondeat superior.

II

The trial court also ruled that The Sage Club was liable under a theory of negligence in maintaining Mr. Thyfault as an employee. Since we have already affirmed on the basis of respondeat superior, we do not need to address the issue of negligence.

Affirmed.

THOMAS, Justice, dissenting.

I cannot join in the opinion of the court in this instance, even though I have no disagreement with the accuracy of the concepts of law and fact which are there set forth. The sole reason I cannot join is that in my judgment this appeal should have been dismissed.

In addition to its other findings, the district court found as follows:

"6. That the Defendant, Sage Club, was negligent in keeping the Defendant, Joe Thyfault as an employee after he had [638 P.2d 164] displayed vicious and aggressive behavior and that Plaintiff's injuries are a result of said negligence.

"7. That the Defendant, Sage Club, is liable to Plaintiff for damages listed in paragraph 3 other than punitive damages as a result of said negligence.

"9. If an employer is negligent in keeping an employee who exhibits aggressive and quarrelsome tendencies and the employee assaults a customer while on duty, the employer is liable for damages resulting from the employer's negligence.

In these findings the district court stated an alternative basis for the liability of The Sage Club other than respondeat superior. I cannot read into the appellant's brief any attack upon these findings of independent negligence. The tenor of the argument is only that the doctrine of respondeat superior does not justify the finding of liability in this instance. While appellant at oral argument attacked the sufficiency of the evidence to support the finding of independent negligence, that matter is not addressed in appellant's docketing statement.

In his docketing statement the appellant in part of his "Statement of the Nature of the Proceedings" said with respect to the finding of the district court: "The Court below held the employer of the bartender liable on the theory of vicarious liability." No mention is made of the independent negligence of The Sage Club. In stating the "Questions Presented by this Appeal" the appellant refers only to the tort being committed "outside the employee's employment." The brief which was submitted is consistent with the docketing statement. The issue of sufficiency of the evidence to support independent negligence on the part of the employer was waived. Roberts Construction Company v. Vondriska, Wyo., 547 P.2d 1171 (1976); Barber v. Barber, Wyo., 349 P.2d 198 (1960), and the authorities cited therein.

The case for me therefore becomes one in which even if the court had agreed with counsel's argument about respondeat superior no relief could have been afforded to the appellant, and no judgment finding error on the part of the trial court could have become effective because The Sage Club would still have been liable based upon its independent negligence.

In North Laramie Land Co. v. Hoffman, 28 Wyo. 183, 201 P. 1022 (1921), the Court said at 28 Wyo. 187, 201 P. 1022:

" * * * If it be made to appear to an appellate court that the questions involved are no longer of any practical importance to the parties the case will not be reviewed on the merits merely to determine who shall pay the costs. * * * "

In Druley v. Houdesheldt, 75 Wyo. 155, 294 P.2d 351 (1956), the Court, with respect to two questions posed by the appellees, there said at 75 Wyo. 165, 294 P.2d 351:

"These questions, while of academic interest and potentially determinative in certain instances, are not requisite to adjudication of this case and need not be discussed."

In Matter of Estate of Frederick, Wyo., 599 P.2d 550, 558 (1979), the Court said, of issues found to be moot:

" * * * While these issues are sharply drawn, no doubt significant, and somewhat intriguing, we conclude that they are illusory for adversarial purposes because of the mootness injected into this case by our disposition of Case No. 5029. Proper application of the principles of judicial restraint leads to the conclusion that we should not here address these issues because our opinion under the circumstances would be advisory only. House v. Wyoming Highway Department, 66 Wyo. 1, 203 P.2d 962 (1949); Welch v. Town of Afton, 64 Wyo. 49, 184 P.2d 593 (1947). Cf., State ex rel. Schwartz v. Jones, 61 Wyo. 350, 157 P.2d 993 (1945)."

In Northern Utilities, Inc. v. Public Service Commission of Wyoming, Wyo., 620 P.2d 139, 140 (1980), the Court in a published order dismissing appeal said:

"2. When pending appeal an event occurs which makes a determination of the question involved unnecessary the appeal should be dismissed. In the Matter of the Estate of Frederick, Wyo.1979, 599 P.2d 550, 558; House v. Wyoming Highway [638 P.2d 165] Department, 1949, 66 Wyo. 1, 203 P.2d 762."

In Reno Livestock Corporation v. Sun Oil Company, Wyo., 638 P.2d 147 (No. 5531, decided December 29, 1981) this court said at P.2d 154:

" * * * When no controversy exists, courts will not consume their time deciding moot questions nor decide cases to arise in the future. Northern Utilities, Inc. v. Public Service Commission, Wyo., 617 P.2d 1079, 1085 (1980) and cases there cited. * * * "

The court at a later point, at 638 P.2d 155, said:

" * * * We will not decide questions not requisite to adjudication and being only of academic interest. Wallace v. Casper Adjustment Service, Wyo., 500 P.2d 72 (1972)."

Because I am persuaded that no attack is mounted upon the alternative basis of liability in this case which is the independent negligence of The Sage Club, it is my view that it is unnecessary to determine the question of respondeat superior. The issue presented by this appeal was moot and illusory from the time the docketing statement was filed. It is for these reasons that I would hold that the appeal should have been dismissed rather than determined.

858 So.2d 1158

Klaus ROESSLER, Appellant,
v.
Russell W. NOVAK, M.D.; Sarasota Surgical Specialists, P.A., a Florida corporation; Richard J. Lichtenstein, M.D.; SMH Radiology Associates, P.A., a Florida corporation; and Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital, Appellees.

No. 2D02-1670.

District Court of Appeal of Florida, Second District.

November 7, 2003.

[858 So.2d 1159] Hector R. Rivera of Duane Morris LLP, Miami, and Dr. Joel S. Cronin, Esq., of Romano, Eriksen & Cronin, West Palm Beach, for Appellant.

Kathleen T. Hessinger of Deacon & Moulds, P.A., St. Petersburg, for Appellee Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital.

Heather C. Goodis of Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., for Appellees Russell W. Novak, M.D., and Sarasota Surgical Specialists, P.A.

No appearance for Appellees Richard J. Lichtenstein, M.D.; and SMH Radiology Associates, P.A.

[858 So.2d 1160] SALCINES, Judge.

Klaus Roessler timely appeals a summary final judgment entered in favor of Sarasota County Public Hospital d/b/a Sarasota Memorial Hospital (Sarasota Memorial).^[1] Because genuine issues of material fact exist as to Sarasota Memorial's vicarious liability for the alleged negligent acts of the radiologist who rendered services to Mr. Roessler while he was a patient at the hospital, the trial court erred in granting the summary final judgment. Accordingly, we reverse.

On September 19, 1996, Mr. Roessler was examined by a physician at the Sarasota Family Walk-In Clinic. The physician took chest and abdominal x-rays of Mr. Roessler. After viewing the x-rays, the physician diagnosed Mr. Roessler as suffering from a perforated viscus and pneumonia. A perforated viscus is a potentially acute life-threatening condition requiring immediate surgical intervention. The physician immediately made arrangements for Mr. Roessler to go to Sarasota Memorial's emergency room to be seen by a surgeon for evaluation of the perforated viscus and surgery. Mr. Roessler went from the family clinic directly to Sarasota Memorial's emergency room. After being evaluated in the emergency room, Mr. Roessler was admitted to the hospital.

The next day, on September 20, 1996, scans^[2] of Mr. Roessler's abdomen were taken in Sarasota Memorial's radiology department while he was an inpatient. Dr. Richard J. Lichtenstein, a board certified radiologist, analyzed and interpreted those scans because he was the radiologist on duty at Sarasota Memorial at the time the scans were brought to be interpreted. Dr. Lichtenstein was not acquainted with Mr. Roessler at that time.

After Mr. Roessler had been admitted to Sarasota Memorial for six days, an operation was performed on his perforated viscus. Although he survived, Mr. Roessler developed serious complications which required approximately a two and one-half month admission in Sarasota Memorial. During that time, Mr. Roessler developed renal failure, a heart condition, systemic sepsis, and multiple brain abscesses which had to be surgically removed.

Mr. Roessler subsequently filed an action against Sarasota Memorial for medical malpractice based upon vicarious liability as well as for negligent destruction of evidence. The present appeal concerns only the summary judgment entered on Mr. Roessler's claim for medical malpractice. In that claim, Mr. Roessler alleged that Dr. Lichtenstein misinterpreted the scans taken in Sarasota Memorial's radiology department and was negligent in failing to include an abdominal abscess in his differential diagnosis of Mr. Roessler's abdominal scans. He further alleged that Dr. Lichtenstein did so while an agent of Sarasota Memorial, that he did so within the scope of the agency, and that the hospital [858 So.2d 1161] was, thus, vicariously liable for Dr. Lichtenstein's alleged negligence.

In response, Sarasota Memorial asserted in its answer, among other affirmative defenses, that Dr. Lichtenstein was an independent contractor and was not an agent, servant, or employee of Sarasota Memorial. Sarasota Memorial filed a motion for summary judgment which asserted, in relevant part, that it was not liable for the acts of Dr. Lichtenstein because he was not an employee or agent of Sarasota Memorial. The trial court granted Sarasota Memorial's motion for summary judgment and entered a final judgment thereon.

In this appeal, we are asked to determine whether Sarasota Memorial satisfied its burden to establish that no genuine issues of material fact existed regarding its vicarious liability, thereby entitling it to summary judgment as a matter of law. We find that Sarasota Memorial did not satisfy that burden.

As a general rule, a principal may be held liable for the acts of its agent that are within the course and scope of the agency. Jaar v. Univ. of Miami, 474 So.2d 239 (Fla. 3d DCA 1985). Although some agencies are based upon an express agreement, a principal may be liable to a third party for acts of its agent which are within the agent's apparent authority.See Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 12.18, at 747 (2003) (discussing agency principles generally and in the context of medical malpractice actions). Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as possessing.Taco Bell of Cal. v. Zappone, 324 So.2d 121, 123 (Fla. 2d DCA 1975). The rationale for the doctrine of apparent authority is that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent. Liberty Mut. Ins. Co. v. Sommers, 472 So.2d 522, 524 (Fla. 1st DCA 1985); see also Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 59 (Fla. 4th DCA 1982).

An apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.^[3] 648 So.2d 119, 121 (Fla.1995). Apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates the appearance of an agency relationship. Id.

While some hospitals employ their own staff of physicians, others enter into contractual arrangements with legal entities made up of an association of physicians to provide medical services as independent contractors with the expectation that vicarious liability will not attach to the hospital for the negligent acts of those physicians. See Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 12.18, at 751-52 (2003). Indeed, Sarasota Memorial and the professional association of radiologists with which Dr. Lichtenstein was affiliated had entered into such an independent contractor agreement.

Under certain circumstances, however, a hospital may be held vicariously liable for the acts of physicians, even if they are independent contractors, if these physicians act with the apparent authority of the hospital. Cuker v. Hillsborough County Hosp. Auth., 605 So.2d 998, 999 (Fla. 2d DCA 1992). The doctrine of apparent authority has been applied to physicians who rendered care and treatment to individuals treated in hospital emergency rooms, see Orlando Regional Medical Center, Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990), as well as in hospital departments other than emergency rooms, see Cuker, 605 So.2d 998. The question of a physician's apparent authority to act for a hospital is often a question of fact for the jury. See Cuker, 605 So.2d at 999 (Fla. 2d DCA 1992); Chmielewski, 573 So.2d at 876.

In the present matter, evidence presented to the trial court for the purpose of the summary judgment proceeding demonstrated that Sarasota Memorial maintained a radiology department which was physically located within the hospital's grounds. Sarasota Memorial contracted with SMH Radiology Associates, P.A., for it to be the exclusive provider of professional radiological services at the hospital. Dr. Lichtenstein was an employee of SMH Radiology on the date he interpreted Mr. Roessler's scans. Neither Dr. Lichtenstein nor SMH Radiology had offices outside of Sarasota Memorial's hospital grounds. The radiologists employed by SMH Radiology, including Dr. Lichtenstein, worked at Sarasota Memorial to provide all professional radiological services twenty-four hours a day, seven days a week, to Sarasota Memorial's inpatients and outpatients.

Mr. Roessler sought the services offered by Sarasota Memorial when he went to Sarasota Memorial's emergency department. [858 So.2d 1163] He was admitted to Sarasota Memorial as an inpatient through Sarasota Memorial's emergency department. Once Mr. Roessler arrived at Sarasota Memorial and was admitted as an inpatient, the hospital provided him with the health care services and providers it determined to be necessary. Such services included inpatient professional radiological services, which were provided by Sarasota Memorial through its radiology department. After abdominal scans were taken in its radiology department, Sarasota Memorial assigned Dr. Lichtenstein to interpret them. Like the plaintiff in Cuker, 605 So.2d 998, Mr. Roessler did not attempt to secure a specialist on his own, but instead accepted the physician provided to him by the hospital.

During a trial, other facts might be developed which could negate a conclusion that Sarasota Memorial should be vicariously liable under an apparent agency theory. However, as presented to the trial court the foregoing facts created a jury question concerning whether Sarasota Memorial, through its actions, represented that Dr. Lichtenstein was its apparent agent. Therefore, the entry of the summary judgment was improper.

Reversed and remanded for further proceedings consistent herewith.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge, Concurring.

I concur because precedent requires me to do so. I believe, however, that our twenty-year experiment with the use of apparent agency as a doctrine to determine a hospital's vicarious liability for the acts of various independent contractors has been a failure. Patients, hospitals, doctors, nurses, other licensed professionals, risk managers for governmental agencies, and insurance companies all need to have predictable general rules establishing the parameters of vicarious liability in this situation. Utilizing case-specific decisions by individually selected juries to determine whether a hospital is or is not vicariously liable for the mistakes of a radiology department, an emergency room, or some other corporate entity that has been created as an independent contractor to provide necessary services within the hospital is inefficient, unpredictable and, perhaps most important, a source of avoidable litigation. Our society can undoubtedly function well and provide insurance coverage to protect the risks of malpractice if there is either broad liability upon the hospital for these services as nondelegable duties or if liability is restricted to the independent contractor. The uncertainty of the current system, however, does not work. The supreme court or the legislature needs to simplify the rules of liability in this area.

As well explained in the majority opinion, in the context of tort law, apparent agency was intended to create vicarious liability for a principal who retains an independent contractor and then represents to the world that the independent contractor is an agent whom the principal has the authority to control. When a specific plaintiff actually relies upon the misrepresentation to his or her detriment, the plaintiff is entitled to recover from the principal for the negligence of the independent contractor. See generally Fla. Std. Jury Instr. (Civ.) 3.3(b)(2). To some extent, apparent agency can be viewed as a form of vicarious liability for personal injuries and property damage that is warranted because of false information negligently supplied by the principal for the guidance of others. See generally Fla. Std. Jury [858 So.2d 1164] Instr. (Civ.) 8.2. This theory works reasonably well to create vicarious liability for isolated cases of negligence involving motor vehicles or premises liability. See Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995) (no jury question where reliance not established by plaintiff); Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 493-94 (Fla.1983),receded from on other grounds by Mobil Oil Corp., 648 So.2d 119 (jury question whether franchisor liable for incident on franchisee's premises); Mather v. Northcutt, 598 So.2d 101 (Fla. 2d DCA 1992); Font v. Stanley Steemer Int'l, Inc., 849 So.2d 1214 (Fla. 5th DCA 2003) (jury question whether franchisor is liable for automobile accident involving franchisee); Dalia v. Elec. Realty Assocs., Inc., 629 So.2d 1075 (Fla. 3d DCA 1994) (same).^[4] It has not worked well to establish responsibility for torts in the context of a complex institution like a hospital that has many interrelated independent contractors working side-by-side for the same customers.

It appears that Florida first utilized apparent agency in the context of medical malpractice in the early 1980s. See Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982); Irving v. Doctor's Hosp. of Lake Worth, 415 So.2d 55 (Fla. 4th DCA 1982). I suspect that the doctrine arose at that time because that is when hospitals first began spinning off their departments into separate corporations. Over the last twenty years, the apparent agency theory has not allowed the law to establish predictable, general rules of liability because a theory that requires a representation by the principal and reliance by the plaintiff is inherently case specific. Thus, after twenty years of precedent, if a hospital were sued by two different patients for two identical acts of malpractice occurring on the same day and committed by the same doctor in the radiology department, the hospital's vicarious liability would be a fact question for resolution by two different juries. Because such liability is based on case-specific representations by the defendant and reliance by the plaintiff, the two juries would be free to decide that the hospital was vicariously liable for one act but not the other.

More than a century ago, Oliver Wendell Holmes theorized that trial by jury should be a practical way to obtain greater certainty in the law. Juries could take the "featureless generality" of the standards announced in negligence law and create narrower, more precise rules through a "process of specification." Oliver Wendell Holmes, The Common Law89-90 (1881). That process may have succeeded to some extent in other areas of tort law, but it has failed in the area of vicarious liability for the acts of medical professionals.

Two recent cases, which are admittedly distinguishable from today's case, seem to favor a theory of nondelegable duty over that of apparent agency in the context of medical negligence. See Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 28 Fla. L. Weekly D2027, ___ So.2d ____, 2003 WL 22023474 (Fla. 1st DCA Aug.29, 2003); Carlisle v. Carnival Corp., 28 Fla. L. Weekly D1991, ___ So.2d ____, 2003 WL 22014591 (Fla. 3d DCA Aug.27, 2003). This trend suggests that hospitals should be vicariously liable as a general rule for activities within the hospital where the patient cannot and does not realistically have the ability to shop on the open market for another provider.^[5] Given modern marketing [858 So.2d 1165] approaches in which hospitals aggressively advertise the quality and safety of the services provided within their hospitals, it is quite arguable that hospitals should have a nondelegable duty to provide adequate radiology departments, pathology laboratories, emergency rooms, and other professional services necessary to the ordinary and usual functioning of the hospital.^[6] The patient does not usually have the option to pick among several independent contractors at the hospital and has little ability to negotiate and bargain in this market to select a preferred radiology department. The hospital, on the other hand, has great ability to assure that competent radiologists work within an independent radiology department and to bargain with those radiologists to provide adequate malpractice protections for their mutual customers. I suspect that medical economics would work better if the general rule placed general vicarious liability upon the hospital for these activities. Thus, I would consider adopting a theory of nondelegable duty, similar to the approach used inShands, if it were not for the existing precedent that employs the theory of apparent agency.

[1] The summary final judgment in favor of Sarasota Memorial was entered only as to one count of a two-count complaint filed against it. The partial final summary judgment was an appealable final order because the causes of action set forth in count one (the hospital's vicarious liability for the alleged negligence of certain health care providers) and count two (the hospital's spoliation of evidence) were distinct claims which were not interrelated under the facts of the present case. See, e.g., S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974).

[2] In the record before this court, the abdominal scans taken of Mr. Roessler by the radiology department at Sarasota Memorial are sometimes referred to as CT (computerized tomographic) scans, and at other times are referred to as CAT (computerized axial tomographic) scans.

[3] In the portion of its motion for summary judgment addressing Mr. Roessler's medical malpractice claim, Sarasota Memorial did not contest Mr. Roessler's reliance or change of position based upon that reliance and, rather, asserted only that it did not represent that Dr. Lichtenstein acted as its agent. In this appeal, Sarasota Memorial suggests that Mr. Roessler's claim should fail on the latter two elements required for a showing of apparent agency. It reasons that where Mr. Roessler never spoke to Dr. Lichtenstein, there was no reliance and since there was no reliance, there was no change in position on Mr. Roessler's part.

The crucial issue as to the latter two elements, however, is not what interaction transpired between Dr. Lichtenstein (the agent) and Mr. Roessler (the third party), but rather what representations were made by Sarasota Memorial (the principal) which would have led Mr. Roessler (the third party) to rely upon it to provide radiological services.

We note that the Fifth District, addressing whether these latter elements had been established by the plaintiffs in the case before it, stated:

In this case, it was shown without dispute that the Chmielewskis came to the ORMC [Orlando Regional Medical Center] emergency room because of ORMC's name and reputation as a hospital and that Boleslaus [Chmielewski] allowed himself to be treated there. The injuries he suffered (if casually connected to the treatment he received) were clearly a "detriment." These additional elements of reliance and detriment appear to us to be subsumed in the scenario of proof in this cause, justifying the trial court's refusal to direct a verdict for ORMC.

However, we note that the Restatement (Second) of Torts quoted above requires no separate proof of "reliance" and "detriment," and further that illustration three of the comments to Restatement (Second) of Agency, section 267 (1958), also does not require these elements, in addition and apart from the initial representation....

The fact of seeking medical treatment in a hospital emergency room and receiving treatment from a physician working there is sufficient.

Orlando Reg'l Med. Ctr., Inc. v. Chmielewski, 573 So.2d 876, 879-80 (Fla. 5th DCA 1990) (citations omitted).

[4] Apparent agency is also used to impose responsibility upon principals for claims that are not based on negligence theories. See Nat'l Indem. Co. v. Consol. Ins. Servs., 778 So.2d 404 (Fla. 4th DCA 2001)(holding liability not established for insurance broker under apparent agency).

[5] Other jurisdictions have attempted to solve this problem by narrowing the doctrine of apparent agencies and establishing general rules that place liability primarily upon the independent contractor. For example, under Kentucky law the fact that a patient reads and signs an admission form containing an independent contractor clause regarding medical personnel is determinative on the issue of ostensible agency.Floyd v. Humana of Va., Inc., 787 S.W.2d 267, 270 (Ky.Ct.App.1989). Even if a patient is unconscious at the time of admission, if the hospital has taken action to notify the public about the status of physicians, an apparent agency is not created. Roberts v. Galen of Va., Inc., 111 F.3d 405, 413 (6th Cir.1997), rev'd on other grounds, Roberts v. Galen of Va., Inc., 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999). In Kentucky, the test is not whether the patient read and signed the form containing the disclaimer; the test is whether the hospital took steps to notify the public about the status of the physicians.

[6] See generally Restatement (Second) of Torts § 416 (1965); William L. Prosser, Handbook on the Law of Torts at 468 (4th ed.1971).