concurring in part and dissenting in part. I concur in Parts I and III of the majority opinion. However, I must dissent from Part II.
Ohio has long adhered to the universally accepted rule that an employee’s tortious act may fall within the scope of employment even though the employee acts in violation of the employer’s directives. Higbee Co. v. Jackson (1920), 101 Ohio St. 75, 81, 128 N.E. 61, 64-65 (employer liable where employee permitted unauthorized passenger to ride in truck); see, also, Prosser & Keeton, Law of Torts (5 Ed. 1984) 502-503, Section 70 (“A master cannot escape liability merely by ordering his servant to act carefully. If he could, no doubt few employers would ever be held liable.”). As Justice Resnick points out in Part II of her dissent, there was competent, credible evidence in the record to support a finding that Jones was within the scope of his employment when he caused the September 3, 1986 fire and explosion. Thus, under existing Ohio law, EEI should be held accountable under the doctrine of respondeat superior.
Nonetheless, the majority ignores both the substantive tort law articulated in Higbee and the standard of appellate review established in the syllabus of C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, 8 O.O. 3d 261, 376 N.E. 2d 578, and states, without elaboration, that the court below “was clearly within its authority to reverse the trial court” because “this case was tried to the court, and not a jury * * Just how a trial to the court rather than to a jury *160justifies a deviation from the established law is left to the reader’s imagination. Three possible interpretations can be considered.
First, the majority may have decided to partially abrogate the syllabus of C.E. Morris and create a new standard of appellate review in nonjury cases. However, neither the parties nor any court or commentator has (to my knowledge) expressed dissatisfaction with the C.E. Morris syllabus. If the majority is establishing a new standard of appellate review for nonjury trials, it should set forth that standard so that the bench and bar of this state will not be left guessing.
Second, the majority may have decided to create a new exception to the doctrine of respondeat superior, establishing as a matter of law that an employee is not in the scope of his or her employment where he or she has failed to comply with one of the employer’s directives. If so, such a sweeping change in the law should be made explicit in the opinion and the syllabus.
Further, such a change in tort law is ill-advised. The rule which we articulated and applied in Higbee has been a universal feature of Anglo-American tort law since the Court of Exchequer Chamber decided Limpus v. London General Omnibus Co. (1862), 1 H. & C. 526, 158 Eng. Rep. 993. Employers — particularly corporations, which have no physical existence and can only act through their agents — would have no incentive to supervise employees and enforce socially desirable work rules if the bare existence of those rules were to be an absolute defense to respondeat superior liability. If the rule of Higbee is eliminated, then corporations doing business in Ohio will be virtually exempt from environmental regulation. Further, they will be all but immune from liability for most criminal or tortious acts. I hope that this is not what the majority intends.
Third, and most likely, the majority may feel that the one-thousand dollar civil penalty imposed for the violation of Ohio Adm. Code 3745-65-17(A) is too harsh on these particular facts, or even that Ohio Adm. Code 3745-65-17(A) is unwise. Accordingly, the majority may have decreed judgment to produce the desired result without concern for the legal rationale supporting it. I eschew such an approach.
The power to establish standards for the safe disposal of hazardous wastes — and civil penalties for the violation of those standards — rests with the Ohio EPA, pursuant to the delegation of legislative power by the General Assembly in R.C. 3745.01. It does not rest with this court. Nor do we exercise prosecutorial discretion. Our duty is to give effect to this legislation within the bounds of the Constitution.
Because I can discern no justifiable basis for exculpating a corporation for acts of a foreman performed within the scope of his employment, I must respectfully dissent from the majority’s affirmance of the dismissal of Count XV against the appellees.