While I concur in the judgment of the court, additional comment regarding our reasoning relating to the decision is warranted in view of appellants' misplaced reliance upon the case ofPhelps v. Positive Action Tool Co. (1986), 26 Ohio St.3d 142, 26 OBR 122, 497 N.E.2d 969. Appellants urge reversal on the basis that the Supreme Court has decided that a worker who voluntarily intoxicates himself removes himself from the course of employment for workers' compensation purposes and thereby precludes his employer from liability to a third party where liability is premised upon respondeat superior. I do not believe the fact-intensive decision in Phelps was, as a matter of legal doctrine, intended to transfer a concept peculiarly applicable to employer/employee relationships in the context of workers' compensation to the general field of tort liability. The appellants argue that "the standards used in determining the course of employment (workers' compensation) are identical to the criteria for scope of employment used for assessingrespondeat superior." The cases cited by appellants do not support this proposition nor can we find any authority for such a contention. The statutory scheme of workers' compensation imposes a form of no-fault liability upon employers for injuries of employees arising out of and in the course of employment. While intoxication may, under some circumstances, result in an employee's inability to perform work-related duties, there exists no reason to deny relief to an innocent third party if the employee is, at the time of the event giving rise to injury or death, acting on behalf of the employer. And this is so notwithstanding the fact the employee may have been under the influence of alcohol. The Phelps case does not address the situation, as in the case sub judice, where the employee may have taken himself out of the scope of employment and returned to it in furtherance of company business. This factual distinction alone results in the Phelps case being inapplicable to the disposition of this case.
The danger of extending a narrowly crafted workers' compensation case to tort law is apparent. It is fundamental that a valid workers' compensation claim must involve an injury arising out of and in the course of employment. The definition *Page 148 of this concept has been addressed in numerous cases. The term "scope of employment," as related to the doctrine ofrespondeat superior, is more elusive, from a definitional standpoint, since the application of this doctrine is fact-driven in each individual case. While the concepts "arising out of and in the course of employment" and "within the scope of employment" are similar, there is no compelling reason to eradicate long-established principles of agency and tort liability even when the employee is drinking if it is concluded the employee is acting in furtherance of the employer's business. In my view, appellants urge a tortuous application of the ruling in Phelps, and in so doing fail to recognize inherent differences in the field of workers' compensation and tort law. Based upon the foregoing and for reasons stated in the majority opinion, the decision of trial court should be affirmed.