(dissenting). At the end of his often harshly worded writing, our learned colleague, although acknowledging that the “plaintiffs circumstances are extraordinarily sympathetic,” holds that established case law requires dismissal of the claims of this young female patient against the hospital responsible for her care. We believe otherwise, and find that his approach is unnecessarily rigid. The law, contrary to the view of our colleague, is not an unchanging body of doctrines to be inflexibly applied, but instead is a set of rules and principles perpetually in the gradual process of re-examination, as courts consider particulars not previously addressed (see generally, Cardozo, Nature of the Judicial Process, at 24-25 [Yale Univ Press]). By *47applying its immutable view of the law to the present case, this Court has caused a young woman seeking justice to come up short today. That is why we write in opposition.
While lying helplessly in a hospital recovery room bed, recovering from vaginal surgery and the powerful effects of anesthesia, plaintiff N. X., a 25-year-old college student and part-time waitress, was approached by a first-year medical resident, who strode past a group of recovery room nurses and proceeded to perform an unwanted and unnecessary pelvic examination on her. Although the perpetrator is unquestionably liable for the injuries he caused her, the question addressed on this appeal is whether Ms. X. may sue the hospital for negligence based upon an alleged breach of its duty to protect her or upon a theory of vicarious liability.
Based upon an analysis of the facts alleged and an application of the existing law to these facts, the motion by defendant hospital for summary judgment addressed to Ms. X.’s claims of direct negligence as well as vicarious liability1 should have been denied. To do so would not overrule or alter any binding authority, despite the concerns voiced by the majority.
The essential facts are as follows:
Ms. X. had undergone laser surgery to remove vaginal warts at the Ambulatory Surgical Unit (ASU) of Cabrini Medical Center (Cabrini). Before the surgery, an anesthesiologist gave her a caudal block and intravenous sedation. Following successful completion of the operation and while still experiencing the effects of the anesthesia, Ms. X. was admitted to the ASU’s Phase 1 Recovery Room. Although she awoke briefly on the way to the recovery room, she soon fell back to sleep.
Ms. X. was the first patient brought to the recovery room that morning, and was admitted by Nurse Imelda Reyes, who had already received and examined her patient chart, which listed the names of the physicians connected with the surgery and the patient’s care, including the surgeon, the anesthesiologist, and the assisting physician. Ms. X. was then left to rest, while Nurse Reyes and Nurse Chung, the other attending nurse, turned their attention to a newly admitted patient on the stretcher next to her. The two nurses were soon joined by their supervisor, Linda Gamboa.
A short time later, defendant Dr. Andrea Favara, a first-year resident working at the hospital for less than one month, *48entered the ASU. Although he was wearing hospital garb and proper identification, Dr. Favara was not personally known to the nurses, nor was he one of the physicians listed on Ms. X.’s chart who had assisted in the surgery. In spite of his unfamiliarity, these three experienced nurses allowed the resident to enter without inquiry, and he proceeded to the side of plaintiffs bed.
Ms. X. awoke to find the medical resident pulling her hospital gown over her head and pushing her thighs apart. He then placed his fingers inside her vagina and anus. Although weak and groggy, plaintiff attempted to pull her gown down to cover her body, and asked him several times to stop. After her third entreaty, he removed his fingers, causing her intense pain. He then departed quickly. According to plaintiff, she then began to cry and call out for a nurse, to inquire whether Dr. Favara was supposed to have examined her.
As a result of this egregious conduct, Ms. X. asserts that she was injured physically, emotionally and psychologically.
This appeal concerns plaintiff’s direct claims against Cabrini on a theory of negligence in failing to adequately safeguard her, as well as on a theory of vicarious liability. Cabrini has disclaimed any responsibility, and the majority agrees with this disclaimer. Cabrini contends, and the majority holds, that the direct negligence claim cannot succeed since Dr. Favara’s misconduct was unforeseeable as a matter of law, that public policy precludes a requirement that nurses take the kind of actions that would have protected Ms. X., and that vicarious liability is unavailable since the doctor was acting outside of his authority. We disagree.
The Hospital’s Direct Negligence
The motion court correctly concluded that issues of fact preclude summary judgment as to whether the hospital was itself directly negligent in failing to carry out its duty to protect Ms. X. during her recovery.2
It is undisputed that a hospital has “a duty to take reasonable care to protect its patients from injury” (Freeman v St. Clare’s Hosp. & Health Ctr., 156 AD2d 300, citing Killeen v State of New York, 66 NY2d 850, 851; see, Morris v Lenox Hill *49Hosp., 232 AD2d 184, affd 90 NY2d 953). “The degree of care owed is commensurate with the patient’s capacity to provide for * * * her own safety” (Killeen, supra, at 852). Accordingly, not only was Cabrini bound to protect Ms. X., but its duty was heightened since she was incapacitated due to the effects of anesthesia. Nevertheless, the majority asserts that because the unauthorized pelvic examination was committed by a resident with no history of misconduct, there necessarily was no breach of duty here, as a matter of law.
Of course, a hospital’s duty does not extend to guaranteeing a patient’s security against all possible risks. Rather, the duty is imposed when a risk is reasonably foreseeable (see, Di Ponzio v Riordan, 89 NY2d 578, 583). The majority relies on this premise to conclude that no duty exists unless the wrongdoer has a history of misconduct, since only then would such an act be foreseeable. However, this reasoning improperly determines the issue of foreseeability as a matter of law.
The question of whether an injury is foreseeable is ordinarily for the jury to decide (see, Rivera v New York City Tr. Auth., 77 NY2d 322, 329). Although there are some circumstances in which courts may decide as a matter of law that an occurrence was not a foreseeable consequence of a defendant’s conduct (see, Di Ponzio v Riordan, 89 NY2d 578, supra), it is important to keep in mind that the precise type of harm that occurred need not have been foreseeable (id., at 584; see also, PJI3d 2:12). Rather, it need only be among a “class of foreseeable hazards that the duty exists to prevent” (id.).
Even if we were to accept the assertion that an unauthorized and unnecessary pelvic exam of a patient by a physician is so rare, as to be deemed a “remote” possibility and, therefore, legally unforeseeable, it may nonetheless fall within a “class of foreseeable hazards.” Indeed, the fact that hospitals are held to a legal duty to protect patients — particularly when the patients’ condition makes it difficult or impossible for them to protect themselves — reflects an implicit recognition that there is a class of foreseeable hazards which such incapacitated patients must be guarded against (cf., Cucalon v State of New York, 103 Misc 2d 808, 813). That class includes the possibility of assaults or unauthorized acts committed on unconscious or semiconscious patients by people with no right or authority to approach or make contact with them.
Furthermore, a holding at this juncture that the misconduct was unforeseeable as a matter of law fails to take into account the surrounding facts and circumstances known to hospital *50personnel just prior to Dr. Favara’s unauthorized pelvic exam. Rather than absolutely extinguishing the established duty, in situations such as those presented here, proper resolution of the issue of whether a breach of duty occurred requires consideration of all the surrounding facts and circumstances. These would include any observations the hospital staff could or should have made at the time immediately preceding the actual wrongdoing, of things sufficiently unusual or out of the ordinary as to strengthen the possibility of misconduct, in order to warrant some curative action or follow-up.
Here, for instance, the nurses were aware of the identity of the patient’s physicians, and were unacquainted with Dr. Favara. A finder of fact could conclude that they should have paid more attention upon observing an unknown physician, with no relation to the patient’s care, approaching the patient. Furthermore, plaintiffs family physician, Dr. G. Peta Carrera, asserted that he was familiar with Cabrini’s procedures and routines, under which first-year residents usually remained on the hospital floor where the operating room was located, and rarely were called to the ASU recovery room. Nurse Reyes also acknowledged that residents were never directly assigned to the Ambulatory Surgical Unit. Therefore, although Dr. Favara was, as the majority writer emphasizes, a surgical resident, there is an evidentiary basis from which a jury could conclude that Dr. Favara’s presence in the ASU recovery area should have been cause for attention, if not concern.
Additionally, the hospital’s formal policy requiring the presence of a nurse when a male physician conducts a gynecological examination, and the testimony that a female witness is supposed to be present for any examination of a female patient by a resident, might support a finding that a nurse should have remained nearby or paid closer attention upon observing a male resident approaching with the apparent intention of conducting an examination on Ms. X. This is especially so since the nature of the surgery performed on her made it substantially more likely that an examination would entail a procedure requiring a nurse to be present.
The majority states that Cornell v State of New York (60 AD2d 714, affd 46 NY2d 1032) stands for the proposition that an assault by a hospital employee in good standing is always unforeseeable as a matter of law. However, in Cornell, where a 14-year-old patient at a mental health facility was sexually assaulted by an attendant with a previously clean record, there was no evidence that other hospital staff in the vicinity at the *51time of the attack had arguable reason to be suspicious or watchful of the person committing the assault. Moreover, there is a difference between an orderly and a physician who is hired and authorized to perform such procedures.
Similarly, although claims of negligent failure to safeguard patients were dismissed on summary judgment in Judith M. v Sisters of Charity Hosp. (93 NY2d 932) and Mataxas v North Shore Univ. Hosp. (211 AD2d 762), in neither case was there any claim of negligence by virtue of the inaction of other staff with reason to take action to protect a patient. In contrast, here the observations of and information known to staff at the scene are sufficient to create an issue of fact as to the foreseeability of misconduct on the part of Dr. Favara. If those observations and that information are found to have made misconduct foreseeable, the imposition of the duty to protect patients would accordingly become appropriate.
To illustrate the point, were a well-known and respected physician to enter a patient’s private room and, without warning, commit an assault there, the hospital’s duty to protect patients would be inapplicable to that situation. However, if immediately prior to entering a patient’s room, the physician had conducted himself in an unusual and suspicious manner, and his conduct had been observed by other hospital staff, the hospital’s duty of protection might indeed require some action. In such circumstances, it would be appropriate to ask whether the hospital’s staff acted in accordance with that duty.
The foregoing analysis does not require a conclusion that the hospital breached its duty. We merely emphasize that inasmuch as the hospital admittedly has a duty to protect its patients to a certain extent from foreseeable risks, it is inappropriate to ignore that duty without considering the particular circumstances surrounding the incident, and whether the hospital’s staff had, or should have had, sufficient awareness or information to raise an issue of fact as to whether a risk to the patient was foreseeable.
The possibility that the hospital’s duty to protect its patients may apply in these circumstances would not create a rule too broad or too vague. Indeed, it would create no new rule at all. We merely point out that the foreseeability of the risk of harm to patients from a hospital employee is not necessarily limited to the question of whether that employee has a prior history of misconduct. When allegations regarding the circumstances surrounding the misconduct raise the possibility that harm was foreseeable, the question of whether imposition of the duty is appropriate may present a preliminary issue of fact.
*52Beyond the foregoing legal issues, the majority also concludes that policy considerations preclude imposition of a duty to safeguard patients in this context, finding that such a duty would be onerous and impractical. In order to do so, they exaggerate and distort the ramifications of such a duty, concluding, for example, that nurses would necessarily be required to stand guard over patients, stop all physicians who are approaching patients, and interrogate them as to their intentions. Of course, this scenario would not be the result of denying summary judgment to the hospital in this case.
We merely conclude that the hospital’s duty to protect incapacitated patients from injury ought not to be eliminated as a matter of law when its staff arguably has reason to take some action for the protection of those patients. This would in no way require nurses to “stand guard” or “interrogate” anyone. Rather, what would be imposed, in appropriate circumstances, is an obligation to pay attention when something unusual occurs or someone out of the ordinary appears, and make reasonable inquiry when a situation warrants it. Although this would not mean that a nurse must keep each patient under constant surveillance, in particular settings, such as a recovery room, where the patients’ ability to protect themselves may be absent or diminished, there might be some degree of responsibility imposed, if the circumstances warranted it.
We need not ignore the reality that a nurse’s functions at times already include elements of guarding patients from harm. Indeed, the rules of ethics applicable to nurses specifically recognize a nurse’s obligation to safeguard not only patients’ health, but their safety as well (see, Am Nurses’ Assn Code for Nurses 3.1 [contained in Codes of Professional Responsibility: Ethics Standards in Business, Health and Law (4th ed)]). These are not duties invented by courts of equity, but rather, tenets of ethical responsibility issued by the profession itself. Had Nurse Reyes observed a stranger entering the room, her professional responsibilities would have required her to take some action, if only to call security. Likewise, had she observed the resident donning surgical gloves, by her own testimony she recognized that she would have had a responsibility to take action to ensure compliance with hospital regulations regarding physical or pelvic exams of female patients. The same obligation might even apply if she observed a male physician well known to her donning surgical gloves as he approached a female patient recovering from a gynecological procedure.
*53We should also recognize that in certain hospital departments such as intensive care units and neonatal wards, where the needs of the patients clearly require stringent limitations on who is permitted entry, the tasks of the assigned nurses commonly include preventing unauthorized individuals from approaching patients. In certain circumstances, such unauthorized individuals might even include staff physicians. For instance, it defies credulity that nurses in a neonatal intensive care unit would allow a physician unknown to and unconnected with that unit to simply walk in, approach an incubator and begin to administer to a neonate, without taking immediate action to ensure that the physician was acting properly. Therefore, unquestionably, status as a first-year resident does not alone suffice to entitle an individual to freely examine patients in all sections of the hospital.
And, of course, nurses and other hospital staff are always bound by a duty to make further inquiry when a physician’s orders or conduct “ ‘are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders’ ” (see, Christopher v St. Vincent’s Hosp. & Med. Ctr., 121 AD2d 303, 306, quoting Toth v Community Hosp., 22 NY2d 255, 265, n 3, citing Fiorentino v Wenger, 19 NY2d 407, 414-415). Given these realities, it is somewhat disingenuous to protest over imposing any duty which may require nurses to protect patients from the misconduct of physicians.
Therefore, the concern professed by the majority, that permitting plaintiff to proceed with her claim that the hospital breached its duty to protect her would grant nurses some new and inappropriate authority over physicians in the hospital hierarchy, is unwarranted. There is nothing improper about a nurse inquiring of a physician, particularly a brand-new physician, present in a hospital location where such physicians are not normally found, whether any assistance is needed. Nor can it be improper for a nurse to attempt to intervene where a physician appears to be committing obvious misconduct, despite their respective positions in the hospital hierarchy.
We see no reason to preclude a trial on plaintiffs claim of negligence on the part of the hospital in this instance.
Vicarious Liability
Plaintiffs cause of action seeking to hold the hospital vicariously liable for Dr. Favara’s misconduct also should have been permitted to proceed to trial.
*54While a hospital will not be held vicariously liable for the tortious conduct of employees who were acting outside the scope of their employment (see, Judith M. v Sisters of Charity Hosp., 93 NY2d 932, supra; Mataxas v North Shore Univ. Hosp., 211 AD2d 762, supra), since the question of whether an employee’s actions fail within or outside the scope of his employment “is so heavily dependent on factual considerations, the question is ordinarily one for the jury” (Riviello v Waldron, 47 NY2d 297, 303 [citations omitted]; see also, Nicollette T. v Hospital for Joint Diseases/Orthopaedic Inst., 198 AD2d 54). In the context of this summary judgment motion, we cannot conclude that Dr. Favara’s actions, as a matter of law, were outside the scope of his normal assigned tasks as a hospital resident.
For an act to be within the scope of employment, it must have, been performed, at least in part, in furtherance of the duty owed to the employer (regardless of how ineptly or misguidedly), and not solely pursuant to his own personal motives (see, Overton v Ebert, 180 AD2d 955, 957, lv denied 80 NY2d. 751; Island Associated Coop. v Hartmann, 118 AD2d 830). Just as a physician who conducts an operation without first obtaining the patient’s consent, thereby committing an assault upon the patient, is still acting within the scope of his employment (see, Oates v New York Hosp., 131 AD2d 368,. 369), performing a pelvic examination without permission, although constituting an assault, may simultaneously constitute conduct within the scope of the resident’s employment. Similarly, where the examination was conducted for a deviant purpose, an otherwise standard examination may amount to an assault; nevertheless, the deviant mental state of the physician while performing the examination does not remove the task itself from the scope of the physician’s employment.
In contrast to, for instance, a beating or an act of rape committed by an employee, which are unquestionably not in furtherance of the employer’s purpose, the complained-of conduct here would be, under other circumstances, a medical procedure, when performed on a patient by a physician employed by the hospital. If the examination performed by Dr. Favara had been performed by a physician specifically assigned to plaintiffs care, it would clearly have fallen within the scope of that physician’s employment. As long as a physician is authorized to perform the procedure, any sexual gratification experienced in the process could render the physician’s motives mixed, but would not necessarily mean that the examination was performed solely for personal motives.
*55Here, although Dr. Favara was not specifically assigned to plaintiffs care, it has not been established as a matter of law that he was unauthorized to perform a pelvic examination. All that is established at present is that the offensive conduct was committed on the employer’s premises by a staff physician apparently doing a task that falls within the scope of what a staff physician normally does.
In the majority’s view, the assaultive nature of Dr. Favara’s conduct necessarily separates his acts from those that fall within the scope of his employment. However, the fact that an employee’s actions constituted a tort, or even a crime, does not necessarily relieve his employer of liability as a matter of law. Although generally an employer will not be held liable for an employee’s criminal attack on a third party (see, e.g., Adams v New York City Tr. Auth., 88 NY2d 116), where the employee is afforded the discretionary authority to employ assaultive tactics, vicarious liability may lie. For instance, a municipality may be vicariously liable for a brutal assault committed by a police officer (see, Rodriguez v City of New York, 92 AD2d 813, affd 62 NY2d 673); a bar may be vicariously liable for a violent assault by its bartender or bouncer (see, Sims v Bergamo, 3 NY2d 531). “[T]he test has come to be 6 “whether the act was done while the servant was doing his master’s work, no matter how irregularly, or with what disregard of instructions” ’ ” (Riviello v Waldron, supra, 47 NY2d, at 302, quoting Jones v Weigand, 134 App Div 644, 645, quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 12-13).
The majoritys remark that “[a] sexual assault committed by a physician can never be considered a mere deviation from the physician’s role as a provider of medical care,” while understandably seeking to draw a clear line between medical treatment and an attack by a physician, fails to acknowledge that an unauthorized medical procedure may constitute both a medical procedure and an assault (see, Oates v New York Hosp., supra, 131 AD2d, at 369). No legal support is offered for the proposition that an act which would otherwise be within the scope of employment is removed from that category based upon the actor’s mental state while performing it. And, the majority does not, and cannot, make a case for considering the criminal act to constitute an “intervening act” which would cut off other liability (see, Morris v Lenox Hill Hosp., 232 AD2d 184, affd 90 NY2d 953, supra).
In considering whether to apply the doctrine of respondeat superior, it is important to bear in mind the purpose of the *56doctrine. The doctrine is an attempt at risk allocation: it imposes upon employers the costs of employees’ tortious conduct because the employer derives benefits from the activities which expose others to the misconduct of their employees (see, Prosser and Keeton, Torts § 69, at 500 [5th ed]; Kavanaugh v Nussbaum, 71 NY2d 535; Sykes, The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines, 101 Harv L Rev 563, 564-581). Particularly where the employer has bestowed upon the employee substantial job-related authority, the employer reaps a benefit from that assignment of authority, and should therefore bear the risk that an employee will abuse that authority (see, Note, “Scope of Employment” Redefined: Holding Employers Vicariously Liable for Sexual Assaults Committed by their Employees, 76 Minn L Rev 1513, 1519 [June 1992]). Indeed, the circumstances of this case make the application of the doctrine of respondeat superior particularly appropriate, since the hospital has clothed the physician with the authority to conduct the type of examination in question.
Because the medical procedure was performed by a staff physician at least arguably authorized to perform such exams, the cases upon which the majority relies to reject the vicarious liability claim are not controlling. The conduct of the hospital employees who assaulted the patients in those cases was clearly not part of the tasks they were normally authorized to perform (see, e.g., Judith M. v Sisters of Charity Hosp., supra [an orderly who was authorized to bathe the patient, but sexually abused her]; Mataxas v North Shore Univ. Hosp., supra [technician operating CAT scan sexually abused patient]). As for the case of Cornell v State of New York (46 NY2d 1032, 1033, supra), it merely reiterates the rule that an employer will not be held vicariously liable for “entirely personal” torts, such as a sexual assault on a 14-year-old patient by an attendant at a mental health facility. In contrast, in the present case the conduct of the employee, a staff physician, was potentially within that which he was authorized and entrusted to do.
We would hold that an issue of fact as to whether Dr. Favara’s conduct fell within the scope of his employment precludes summary judgment.
Finally, support exists for plaintiffs contention that an employer may be held vicariously liable even where the torts of employees were outside the scope of their employment, if the *57employee “purported to act * * * on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation” (see, Restatement [Second] of Agency § 219 [2] [d]; and see, Faragher v Boca Raton, 524 US 775, 801). By its terms, this provision applies to “[a] servant[] * * * acting outside the scope of [his] employment” (see, Restatement [Second] of Agency § 219 [2]). The evidence here is sufficient to support a prima facie claim on this theory of vicarious liability as well.
We would therefore modify so as to reinstate this claim as well as the direct negligence cause of action.
Williams, J. P., and Buckley, J., concur with Friedman, J.; Rubin and Saxe, JJ., dissent in a separate opinion by Saxe, J.
Order, Supreme Court, New York County, entered August 19, 1999, modified, on the law, to the extent of granting the motion for summary judgment dismissing the complaint as against Cabrini Medical Center in its entirety, and otherwise affirmed, without costs.
. Plaintiff concedes that her first cause of action, for negligent hiring, was properly dismissed.
. Contrary to the majority’s position, the duty relied upon by plaintiff is not “[a]t its core” a duty to supervise the resident. The crux of plaintiff’s claim is the hospital’s undisputed duty to protect its patients, not its obligation to supervise its employees.