IN THE SUPREME COURT OF THE STATE OF OREGON

JOHN MINNIS and LITTLE JOHN’S PIZZA CO., LLC,

		Plaintiffs-Appellants,
		Respondents on Review,

	v.

OREGON MUTUAL INSURANCE COMPANY,

		Defendant-Respondent,
		Petitioners on Review.	)))))))))))))	

Supreme Court Case No. S46892

Court of Appeals Case No. A98241

Washington County Circuit Court 
Case No.  C96-1230-CV	

BRIEF ON THE MERITS

Filed on Behalf of Amicus Curiae
Oregon Association of Defense Counsel

On the Petition for Review of a Decision of the Oregon Court of Appeals 
on Appeal from a Judgment of the Washington County Circuit Court

The Honorable Jon B. Lund
Washington County Circuit Court Judge, Presiding

Opinion Filed:	August 4, 1999	
Author of Opinion:	Kistler, J.	
Concurring:	Armstrong, J.	
Dissenting:	Edmonds, P.J.	

G. Kenneth Shiroishi, OSB No. 74300
Dunn Carney Allen Higgins & Tongue llp
851 SW Sixth Avenue, Suite 1500
Portland OR 97204
(503) 224-6440
(503) 224-7324  fax
gks@dunn-carney.com

Attorneys for Amicus Curiae 
Oregon Association of Defense Counsel				July 6, 2000
William G. Earle, OSB No. 83185
Alan Gladstone, OSB No. 94318
Abbott Davis Rothwell Mullin &b Earle PC
One SW Columbia Street, Suite 800
Portland OR 97258
(503) 222-4422
(503) 222-4428  fax

Attorneys for Petitioner on Review, Defendant-Respondent
Oregon Mutual Insurance Company

Christopher A. Rycewicz, OSB No. 86275
Brian D. Chenoweth, OSB No. 94499
Rycewicz & Chenoweth PC
1001 SW Fifth Avenue, Suite 1300
Portland OR 97204
(503) 221-7958
(503) 221-2182  fax

and

Michael J. Knapp, OSB No. 83394
Myers & Knapp
One SW Columbia Street, Suite 550
Portland OR 97258
(503) 227-4558
(503) 796-0709  fax

Attorneys for Respondents on Review, Plaintiff-Appellants
John Minnis and Little John’s Pizza, Co., LLC

TABLE OF CONTENTS

	Page 	
		
Introduction
	1
	
Discussion:

Chesterman v. Barmon and the companion cases of Fearing v. Bucher and Lourim v. Swensen represent a significant but unjustified departure from the well-established doctrine of respondeat superior and the limiting boundaries of an employer’s vicarious liability for its employees’ misconduct that that doctrine imposes.
	2
	
1.	Employer vicarious liability before Chesterman; the Restatement (Second) of Agency, section 228
	3	
2.	Chesterman v. Barmon:  “Rube Goldberg is alive and well”
	6	
3.	Fearing v. Bucher and Lourim v. Swensen:  imposing a strict, absolute standard of employer liability
	9	
Summary and Conclusion
	16	
Index of Authorities

		

INDEX OF AUTHORITIES
Cases
Chesterman V. Barmon, 
305 Or. 439, 753 P.2d 404 (1988)	1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 16

Fearing V. Bucher, 
147 Or. App. 446, 936 P.2d 1023 (1999)	15

Fearing V. Bucher, 
328 Or. 367, 977 P.2d 1163 (1999)	1, 2, 3, 9, 10, 11, 12, 13, 14, 16

Fugate V. Safeway Stores, Inc., 
135 Or. App. 168, 897 P.2d 328 (1995)	14

G.L. V. Kaiser Foundation Hospitals, Inc., 
306 Or. 54, 757 P.2d 1347 (1988)	11, 12

Gossett V. Simonson, 
243 Or. 16, 411 P.2d 277 (1966)	3, 5, 9, 14

Lourim V. Swensen,
147 Or. App. 425, 936 P.2d 1011 (1999)	15

Lourim V. Swensen, 
328 Or. 380, 977 P.2d 1157 (1999)	1, 2, 3, 9, 10, 11, 12, 13, 14, 16

Minnis V. Oregon Mutual Ins. Co., 
162 Or. App. 198, 986 P.2d 77 (1999)	1, 2, 3, 10, 13, 16

Stanfield V. Laccoarce, 
284 Or. 651, 588 P.2d 1271 (1979)	4, 14

Stroud V. Denny’s Restaurant, 
271 Or. 430, 437, 532 P.2d 790 (1975)	8

Treatises

Keeton, Prosser and Keeton on Torts 499 (5th ed. 1984)	5

P. Mechem, Agency 246, § 365 (4th ed. 1952)	5, 9

Restatement (Second) of Agency § 228	3, 4, 5

Restatement (Second) of Agency section 229	4

On Behalf of Amicus Curiae
Oregon Association of Defense Counsel

BRIEF IN SUPPORT OF PETITIONER ON REVIEW

INTRODUCTION

	Amicus curiae, the Oregon Association of Defense Counsel (“OADC”), submits this brief in support of the reversal in part of the decision of the Oregon Court of Appeals in the case of Minnis v. Oregon Mutual Ins. Co., 162 Or. App. 198, 986 P.2d 77 (August 4, 1999).  In particular, insofar as the court of appeals held that, as required by this court’s prior decisions regarding the scope and application of the doctrine of respondeat superior, defendant Oregon Mutual Insurance Company had a duty to defend and to indemnify its insured corporate employer, amicus OADC urges the supreme court to reconsider its controlling decision in Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404 (1988) and in the later, companion cases of Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (April 1999) and Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (April 1999).  And upon reconsideration, amicus OADC believes that the court should either overrule the decisions in these cases or strictly confine its ruling to the very unique circumstances of these cases.  In addition, amicus OADC requests that, as may be required by the following discussion, the court should, in relevant part, reverse the decision of the court of appeals in Minnis and affirm the trial court’s summary judgment of dismissal.  
DISCUSSION
	Chesterman v. Barmon and the companion cases of Fearing v. Bucher and Lourim v. Swensen represent a significant but unjustified departure from the well-established doctrine of respondeat superior and the limiting boundaries of an employer’s vicarious liability for its employees’ misconduct that that doctrine imposes.

	In determining the question of whether the insured corporate employer, Little John’s Pizza Co., should be held vicariously liable for its employee’s intentional tortious conduct, the court of appeals relied upon this court’s seminal opinion in Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404 (1988).  In Chesterman it was held that an employer could be held vicariously liable under the doctrine of respondeat superior for its employee’s torts, despite the fact that the employee’s conduct was both intentional and fell outside the reasonable scope of his employment, as long as that conduct could be connected in some principled manner to an act that was within the employee’s scope of employment.  Minnis v. Oregon Mutual Ins. Co., 162 Or. App. at 205–206.  As summarized by the Minnis court, vicarious liability could be established provided that there existed a substantive, causal connection between the employee’s intentional, misconduct and a job-related act.  Ibid. at 206, 208.  The court of appeals noted, however, that after Chesterman there remained the question of how “strong” that causal connection had to be.  Ibid. at 206.  This question was answered, in the court of appeals’ view, by this court’s recent opinions in Fearing v. Bucher and Lourim v. Swensen.  Id. 
	Quoting from the lead opinion in Fearing, the court of appeals explained that employer vicarious liability requires more than merely presenting an employee tortfeaser with the opportunity to commit a tort; rather, it must be pleaded and proved that the tortfeasor’s job-related conduct was a “necessary precursor” to the employee’s tortious conduct in that the latter was, thus, “a direct outgrowth of and [was] engendered by conduct that was within the scope of [the employee’s] employment”.  Minnis, 162 Or. App. at 207 (quoting Fearing, 328 Or. at 377).
	Thus, and as understood by the Minnis court, the decision in Chesterman and as further developed in Fearing and Lourim established an expansive view of the theory of employer vicarious liability for an employee’s intentional misconduct occurring entirely beyond that employee’s reasonable or usual scope of employment.  As so decided, amicus OADC believes that the Chesterman, Fearing, and Lourim decisions were ill considered and wrongly determined.  
	1.	Employer vicarious liability before Chesterman: Restatement (Second) of Agency, section 228.

	The scope and boundaries of an employer’s liability for the tortious or other wrongful conduct of its employees was well recognized in the law and by this court’s decisions prior to Chesterman.  For example, in the often cited case of Gossett v. Simonson, 243 Or. 16, 411 P.2d 277 (1966), this court noted:
	“Legal theorists suggest many reasons for permitting tort victims to recover against nonnegligent masters for the negligence of their servants.  The idea that a certain degree of risk distribution, or enterprise liability, works justice has been * * * the principal reason for the doctrine of respondeat superior.  This policy, tinctured with a related notion that vicarious liability encourages accident prevention, has justified liability without fault on the master’s part for the servant’s negligent acts, if the servant was acting within the scope of his employment.  
	* * * *
	“When courts started to hold nonnegligent masters liable, they did so on the theory that so long as the negligent servant was about his master’s business and under his control it was more just that the master pay the damages than that the innocent tort victim be left without remedy.  The limitation of such liability to ‘scope of employment’ has led the courts to the inquiry whether the harm resulted from an activity over which the master had some right to exercise his supervisory prerogatives as an employer.
	* * * *
	“The Latin maxim, qui facit per alium facit per se, is a traditional (if unintelligible) way of indicating that legal liability ‘follows the action’.  When one employs a servant or agent to do his work, the employer is, in the eyes of the law, the actor.  The damages caused by the activity are the master’s responsibility, so long as it is the master’s business that is being done.”
243 Or. at 21–23 (citations omitted).  The court then expressly approved and adopted the definition of “scope of employment” as set out in section 228 of the Restatement (Second) of Agency:
	“(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 * * *

	“(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.”

Gossett, 243 Or. at 24–25.

	As later explained by this court in Stanfield v. Laccoarce, 284 Or. 651, 588 P.2d 1271 (1979), the limiting definition of “scope of employment” is designed to ensure that  an otherwise non-culpable employer will be held liable only for harm resulting from those acts that arise properly from the established employer-employee relationship and in furtherance of the employer’s business, and that such liability is properly considered as one of the normal risks of the employer’s business to be borne by the employer.  Stanfield, 284 Or. at 655 (citing and relying upon Restatement (Second) of Agency § 229, 

Comment a).  However, the Gossett court cautioned that “if the purpose of respondeat superior is to put on the business, for the purpose of allocation, the risks of the business, that plainly means just the risks of carrying on the business; it does not include the risks of the personal conduct of all connected with the business simply because they are connected with the business”.  Gossett, 243 Or. at 22–23 (quoting P. Mechem, Agency 246, § 365 [4th ed. 1952]).  
	Thus, prior to this court’s decision in Chesterman, a not-at-fault employer could be held vicariously liable for its employee’s wrongful conduct only if such misconduct (a) was of the kind the employee was employed to perform; (b) occurred substantially within the time and space limits of the employee’s job; (c) was undertaken, at least in part, by a purpose to benefit the employer; and (d) if force was intentionally used by the employee against another, the use of that force is not unexpected by the employer.  Restatement (Second) of Agency § 228.  Moreover, it is readily apparent from this formulation of the doctrine of respondeat superior, that a necessary element of the employer’s sphere of vicarious liability is the factual existence of its employee’s injury causing, job-related misconduct:
“The foundation of the action is still negligence or other fault * * *.  All the law has done is to broaden the liability for that fault by imposing it upon an additional, albeit innocent, defendant [employer].”  

Chesterman v. Barmon, 305 Or. 499 (Jones, J., dissenting) (quoting from Keeton, Prosser and Keeton on Torts 499 [5th ed. 1984]).  Thus, the doctrine of employer vicarious liability and its boundaries were well-established and consistently applied prior to the Oregon Supreme Court’s expansive decision in Chesterman v. Barmon.

	2.	Chesterman v. Barmon:  “Rube Goldberg is alive and well”.
	In 1988, this court penned a brief but significant, sea-changing opinion regarding the law of employer vicarious liability.  In Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404 (1988), with almost no analysis or discussion, this court held that an employer could be found liable under the doctrine of respondeat superior for the intentional misconduct of its employee even though, as a matter of law, the complained of injury and the actor-employee’s injury causing conduct occurred at a time and place that was outside of that employee’s “scope of employment”.  305 Or. at 443.
	The court first conceded that had the injured plaintiff attempted to premise the defendant employer’s liability solely on its employee’s off-the-job misconduct, the employer could not be held to be vicariously liable.  But with little explanation or justification, the court then pronounced that an employer “still may be found vicariously liable, however, if other acts which were within [the employee’s] scope of employment resulted in the acts which led to the injury to plaintiff”.  Id. (emphasis original).
	Stated otherwise, the court noted:	
	“Our decision today might be understood as being at odds with certain of this court’s earlier decisions on respondeat superior.  In those decisions, this court determined whether respondeat superior applied as of the time that the injury occurred.  Although appropriate in most cases, the rule is inappropriate where, as here, there is a “time-lag” between the act allegedly producing the harm and the resulting harm.  The focus should be on the act on which vicarious liability is based and not on when the act results in injury.”

Ibid. at 444 (emphasis original) (citations and footnote omitted).

	Chesterman involved what this court itself described as “somewhat unusual facts”.  305 Or. at 443.  The defendant Barmon was both the sole employee and the president of the defendant corporate employer, Construction 80, Inc.  Under these circumstances, defendant Barmon was viewed as at once being the actor-employee and his own employer.
	The key events of this case open with the defendant meeting with potential customers at their home to formulate plans and to obtain information for a proposed remodeling project.  At the conclusion of the meeting, the defendant felt depressed and physically drained.  Before leaving the home site, the defendant took a pill containing what he thought to be “chocolate mescaline” hoping for an energy boost that would enable him to drive to his boat where, as it was his normal practice, he would work on preparing a bid for the project.  305 Or. at 443. 
	After he left the customer’s home site, the defendant began to hallucinate.  At some point during the drive to his boat, the defendant stopped his truck.  He then left his vehicle, broke into plaintiff’s nearby home and sexually assaulted her.  Id
	In part, plaintiff Chesterman sought to impose liability on defendant Barmon’s employer, Construction 80, under the doctrine of respondeat superior.  The plaintiff argued that the breaking and entry into her home and the sexual assault that followed and defendant Barmon’s ingestion of the hallucinogenic drug were the acts that the court should focus on in determining whether plaintiff was harmed by the defendant employee while he was acting within the scope of his employment.  Ibid. at 442–443.  The defendant employer, Construction 80, argued instead that the court’s proper focus was upon the defendant employee’s conduct that directly injured the plaintiff, that is, the breaking and entering of plaintiff’s home and the sexual assault.  
	Although recognizing that the court’s earlier decisions had consistently held that the question of whether the doctrine of respondeat superior would be applied in a particular situation was dependent upon the facts and circumstances existing at the time of the injury, this court, and the court of appeals earlier, held nonetheless that that “rule is inappropriate where, as here, there is a “time-lag” between the act allegedly producing the harm and the resulting harm[;] the focus should be on the act on which vicarious liability is based and not on when the act results in injury.”  305 Or. at 444 (emphasis original); see also Chesterman, 82 Or. App. at 1, 6, n. 2.  However, a fair and reasoned application even of this new standard, which quite clearly expanded the zone of an innocent employer’s vicarious liability, shows that Chesterman was wrongly decided.
	As this court decreed, the previously recognized time-immediacy rule [e.g., Stroud v. Denny’s Restaurant, 271 Or. 430, 437, 532 P.2d 790 (1975)] should not find application where there was a “time-lag” between the injury and the injury causing act.  As propounded, this new standard, thus, should find application in the circumstances where the actor-employee’s on-the-job misconduct later caused another to suffer an injury.  In point of fact, however, Chesterman was not that case.  
	At best, Chesterman presented a factual setting where defendant Barmon’s possible job-related misconduct (viz., the negligent and unlawful ingestion of a controlled drug) caused Barmon to stop his vehicle before reaching his intended destination.  But, at that point, Barmon left his truck and embarked upon a personal detour that had nothing to do with his employment, and which later resulted in plaintiff’s injuries.  Although it may be contended that there was some connection between defendant Barmon’s ingestion of the drug and the harm done to plaintiff, that connection exists only at a gross level; and upon examination, that all important connection suffers an insurmountable disconnect at the time Barmon left his vehicle.  A disconnect that this court itself found was, as matter of law, outside the scope of Barmon’s employment.  305 Or. at 443.
	Although one might argue that, at some level, all things are connected in some way, the strict liability doctrine of respondeat superior is much more limited in its scope.  As noted before, the doctrine “does not include the risks of the personal [mis]conduct of all connected with the business, simply because they are connected with the business”.  Gossett v. Simonson, 243 Or. at 22-23 (quoting P. Mechem, Agency 246, § 365 [4th ed. 1952]).  
	Under these circumstances, the Chesterman court’s formulation of its rule of a “time-lag” connection or causation did not, in fact, apply to the circumstances in that case.  But, even if found applicable, the court offered no principled justification why the established common law and its recognized limitations of that form of strict liability should not control.  Ipse dixit is not a rule of law and it cannot serve as justification for a significant departure from this court’s well established understanding of the limitations and scope the doctrine of respondeat superior.  On this basis alone, this court should either overrule its decision in Chesterman or limit its holding to the “somewhat unusual facts” of that case.  305 Or. at 443.
	3.	Fearing v. Bucher and Lourim v. Swensen:  Imposing a strict, absolute standard of employer liability.

	As noted by the court of appeals in the immediate case, the question that remained after Chesterman was how strong — or unsubstantial — did the causal connection between the defendant employee’s claimed on-the-job conduct and the claimed resulting injury have to be:
	“The court recently reaffirmed Chesterman’s reasoning and addressed the sufficiency of a causal connection in [Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (April, 1999)] and Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (April, 1999).”  

Minnis v. Oregon Mutual Insurance Co. Ins., 162 Or. App. at 206.
	Although differing in their details, the material fact pattern in Fearing and Lourim was substantially similar; and both cases raised the same legal issue, specifically: whether an innocent employer could be found vicariously liable for the intentional, predatory personal misconduct of an employee where, as a part of his job, the employee is expected to and does establish a close, personal relationship with another person that, as pleaded, results in the sexual abuse of that person.[]  
	In both of these cases, as part of the actor-employee’s normal and expected duties, the employee formed a personal relationship with the injured plaintiff, then an adolescent, and with plaintiff’s family.  It was also noted that, by virtue of that relationship, the employee gained the trust, support, acquiescence, and permission of plaintiff’s family to be alone with plaintiff for substantial periods of time.  Fearing, 328 Or. at 372; Lourim, 328 Or. at 384–385.
	In both cases, the court concluded that the trusting relationship that the actor-employee had established with plaintiff and plaintiff’s family allowed the employee to be alone with the plaintiff and to touch him physically, and that a jury could reasonably infer that that conduct, although unquestionably permissible, “engendered” the sexual assaults.  Fearing, 328 Or. at 374-375; see also Lourim, 328 Or. at 386.  In support of its position, the supreme court adopted the standard as articulated in Chesterman:
	“A jury reasonably could infer that [the priest’s] performance of pastoral duties with respect to plaintiff and his family were a necessary pre-cursor to the sexual abuse and that the assaults thus were a direct outgrowth of and were engendered by the conduct that was within the scope of [the priest’s] employment.”

Fearing, 328 Or. at 377; see also Lourim, 328 Or. at 386-387.  In other words, in cases such as Fearing and Lourim where the employee’s unique type of employment “brought the tortfeaser and the victim together in time and place and, therefore, gave the tortfeaser the ‘opportunity’ to commit the assaults”, the court held that the plaintiff also must be able to plead and prove that the assaults were “engendered” or caused by conduct that was within the scope of the employee’s job.  Fearing, 328 Or. at 377.  Stated differently, the court recognized that a showing of mere “opportunity” was not enough.  Ibid. at 376 (citing G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or. 54, 757 P.2d 1347 [1988]).  Thus, to establish an employer’s vicarious liability where, arguably, the injury and the injury causing conduct are of a kind not ordinarily thought to come within the confines of the actor-employee’s scope of employment, this court held that Chesterman required that the injury be causally connected to an act or conduct that was done within the employment.  Fearing, 328 Or. at 374-377.  
	At the outset, however, it must be recognized that Chesterman involved the question of whether an employer could be held vicariously liable for an injury to a third-person where the facts showed that, unlike the circumstances present in Fearing and Lourim, plaintiff’s injuries and the actor-employee’s injury causing conduct occurred at a place and time that, as a matter of law, was determined to be outside of the employee’s “scope of employment”.  Chesterman, 305 Or. at 443.  The Chesterman standard is, thus, a means of bridging the gap in the required chain of causation between an actor-employee’s on-the-job negligence or other fault and the pleaded, albeit remote, resulting injury.  In other words, the Chesterman standard poses the question:  Did the employee’s on-the-job conduct cause a third-person to be injured at a time and place distant from the employee’s employment?  In Fearing and Lourim, on the other hand, it apparently was not disputed that the sexual assaults occurred within the temporal and spatial limits authorized by the employment.  Instead, these cases presented the issue of whether, in committing the sexual abuses, the actor-employee was motivated, at least partially, by a purpose to serve the employer; and whether the employee’s sexually abusive conduct was of a kind that the employee was hired to perform.  See, e.g., Fearing, 328 Or. at 375–377.  As so stated, the Chesterman causation standard was wrongly applied in Fearing and Lourim.  
	As used in Fearing and Lourim, the Chesterman standard posed the question:  Did the actor-employee’s lawful, permitted job-related conduct “engender” or cause that employee to purposefully sexually abuse an innocent person whom had been entrusted to the employee’s care?  Id.  As discussed below, although perhaps a question of public policy that is properly addressed to this court [G.L. v. Kaiser Foundation Hospital, Inc., 306 Or. 54, 57-58. 757 P.2d 1347 (1988) (the modern justification upon which the doctrine of respondeat superior lies is “a rule of policy, a deliberate allocation of risk”)], the issue thus presented is not one for a jury.  
	If anything survives in Chesterman, it must be that, for an employer to be held vicariously liable for a seemingly disconnected injury caused by the employer’s employee’s personal misconduct, it must be shown that the complained of injury was caused by the on-the-job negligence or other fault of the actor-employee.  See Chesterman, 305 Or. at 449 (Jones, J. dissenting) (the foundation of the doctrine of respondeat superior rests upon the employee’s job related negligence or other fault).  But, again as articulated by Fearing and Lourim, the Chesterman rule would allow a jury to infer that an employee’s innocent job-related conduct “engendered” or caused that employee to injure another person.  Minnis, 162 Or. App. at 208.  To summarize, Fearing and Lourim hold that an employer’s vicarious liability can be established merely by pleading and showing that (i) the employment presented the actor-employee with an opportunity to harm the plaintiff, and (ii) the employee acted on that opportunity to pursue an entirely personal, predatory scheme, which was wholly unrelated to his employment, to intentionally harm plaintiff.  The Fearing and Lourim courts would thus permit a jury to conclude that an employee’s authorized and lawful acts caused the actor-employee to sexually assault another absent proof of any job-related purpose or misconduct.  E.g., Fearing, 328 Or. at 375–377; see also Minnis, 162 Or. App. at 208.  Indeed, in Fearing, the court forthrightly held that “the fact that a jury in the present case could conclude that [the employee-priest’s] efforts to cultivate a trust relationship with plaintiff did not ‘cause’ the alleged harm does not alter the conclusion that the causation question should be left to the jury”.  328 Or. at 377.  That cannot be a standard that finds application under the doctrine of respondeat superior.  If that were the case, the heretofore recognized limitations of the doctrine, a form of strict liability, would be no more.  Under Fearing and Lourim, the jury, rather than the court, would determine whether an employer will be strictly, absolutely responsible for its employee’s conduct, whatever that conduct may be.  
	Although ordinarily, the question of whether or not an employee has acted within the scope of his employment and whether such acts may have caused harm to another are questions for the jury, a jury will not be permitted to employ speculation, conjecture, or prejudice in deciding those questions.  See Fugate v. Safeway Stores, Inc., 135 Or. App. 168, 897 P.2d 328 (1995); see also Stanfield v. Laccoarce, 284 Or. 651, 655, 588 P.2d 1271 (1979) (the question of whether or not an employee has acted within the scope of his employment at any given time is normally a question for the jury, except in cases where only one reasonable conclusion can be drawn from the facts).  To paraphrase this court, it may be assumed that if a jury were free to hold an employer liable under the described circumstances for its employee’s intentional misconduct solely because the requirements or expectations of the employee’s job present an inherent “opportunity” for misadventure, there would be no limit to the liabilities that could be imposed upon employers for the torts of persons on their payroll.  Gossett v. Simonson, 243 Or. at 24.  Or as Professor Mechem admonished, the doctrine of respondeat superior “does not include the risks of the personal [mis]conduct of all connected with the business, simply because they are connected with the business”.  P. Mechem, Agency 246, §365 (4th ed. 1952).  
	Under the standard articulated in Fearing and Lourim, without proof of any culpable, job-related purpose or misconduct, a jury would be permitted to speculate and to bring to bear whatever prejudices they may have against the actor-employee or the latter’s employer.  This cannot be, and it is not, the law.  Under these circumstances, even if Chesterman survives the day, Fearing and Lourim cannot.  This court should overrule its decisions in Fearing and Lourim and adopt the court of appeals’ well reasoned and principled opinions in those cases.  Fearing v. Bucher, 147 Or. App. 446, 936 P.2d 1023 (April 1999) and Lourim v. Swensen, 147 Or. App. 425, 936 P.2d 1011 (April 1999).

SUMMARY and CONCLUSION
	In the immediate appeal, the court of appeals was left with the unenviable task of explaining and applying Chesterman, and this court’s later opinions in  Fearing and Lourim.  Although expressing some concern, as explained by the Minnis court, those cases, if correctly decided, establish that the question is whether there exists a substantive and principled causal connection, not a temporal and spatial link, between the acts taken on the employer’s behalf and the acts that result in the complained of harm.  Minnis, 162 Or. App. at 208, n. 5.  Fearing and Lourim would effectively permit a jury to decide whether an employer should be liable for its actor-employee’s intentional misconduct merely upon the allegation that such conduct was somehow connected to the employee’s employment.  However, as discussed above, Chesterman and Fearing and Lourim were wrongly decided.  Therefore, to the extent the decision of the Oregon Court of Appeals in Minnis was dependant upon this court’s decisions in Chesterman, Fearing, and Lourim, this court should reverse the decision of the court of appeals and affirm the trial court’s summary judgment of dismissal.
	DATED this 6th day of July 2000.
Dunn Carney Allen Higgins & Tongue  LLP

By:  __________________________________
Kenneth Shiroishi, OSB No. 74300
851 SW Sixth Avenue, Suite 1500
Portland, Oregon  97204
(503) 224-6440
(503) 224-7324  fax
Attorneys for Amicus Curiae
Oregon Association of Defense Counsel

CERTIFICATE OF FILING AND SERVICE

	I hereby certify that on the date below I filed the foregoing BRIEF ON THE MERITS by delivering the original and 12 copies via first class mail to the following:
State Court Administrator
Records Section
Supreme Court Building
1163 State Street
Salem OR 97310

	At the same time and in the same manner, I served the foregoing BRIEF by delivering 2 copies to the following:
William G. Earle
Alan Gladstone
Abbott Davis Rothwell Mullin &b Earle PC
One SW Columbia Street, Suite 800
Portland OR 97258

Christopher A. Rycewicz
Brian D. Chenoweth
Rycewicz & Chenoweth PC
1001 SW Fifth Avenue, Suite 1300
Portland OR 97204

Michael J. Knapp
Myers & Knapp
One SW Columbia Street, Suite 550
Portland OR 97258

	DATED this ____ day of July 2000.

__________________________________
G. Kenneth Shiroishi, OSB No. 74300
Of Attorneys for Amicus Curiae
Oregon Association of Defense Counsel