dissenting. I respectfully dissent from the majority opinion because it adopts a new and distorted legal standard within the law of agency *335which, in effect, holds that the acts of an off-duty police officer are presumptively within the course of his employment when he announces that he is a police officer. The majority adopts the legal standard that since police officers are authorized to intervene in criminal events, and to maintain the peace, even when off duty, the use of their weapons and the use of force against others are presumptively in the course and scope of their employment. In effect, the majority has adopted a police-officer exception to agency law which may have the effect of discouraging municipalities from training their police officers to intercede in criminal events that they observe while off duty. I believe adopting this standard in Ohio is contrary to the law currently followed in Ohio, and is unsound public policy.
Ordinarily, acts committed by an employee when he is off duty are not within the scope of his employment, and the employer is not liable for these acts. An employer is not liable for an employee’s tortious acts when such acts are not performed to further the employer’s business and are motivated by the employee’s personal malice toward the injured party. Moreover, there is no liability in such situations even though the employee might be on duty at the time. It is of little consequence that the employee may use instruments provided by the employer or the indicia of his employment to commit the willful and malicious act. See Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, 513 N.E.2d 288; Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 59 O.O.2d 196, 283 N.E.2d 175.
For purposes of our discussion here, the seminal Ohio case on the issue of an employer’s vicarious liability for the assault by an employee upon a third person is Little Miami RR. Co. v. Wetmore (1869), 19 Ohio St. 110, wherein a railroad employee assaulted a passenger. The Wetmore court reversed a jury verdict against the employer, stating:
“It seems to us that the assault was in no way calculated to facilitate or promote the business for which the servant was employed by the master; nor could it have been supposed to be, or intended as, an act done with that view or object. It is not a case of excess of force and violence in executing the authority of the master, but rather an act beyond such authority and foreign to the objects of the employment. * * * ” Id. at 132.
The Wetmore court went on to adopt two sound principles of agency. First, “ * * * [bjeyond the scope of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master.” Id. at paragraph one of the syllabus. Also, the Wetmore court stated that it is immaterial to the issue of liability that an *336employee uses an instrument provided by the employer, in connection with the employer’s business, to injure another. Id. at paragraph two of the syllabus.
As a limited exception to the general rule that acts committed by an off-duty employee are not within the scope of employment, there are instances where appropriate acts of an off-duty police officer may be found to be within the scope of employment. For example, off-duty police officers, as noted supra and by the majority, may intercede in criminal events that they observe while off duty. Police officers are trained and encouraged to do what is necessary to halt a crime in progress or to enforce the law in aid of a citizen in need, and this is to be done whether on or off duty. However, for the acts of the off-duty police officer to be found to be within the scope of his employment they must be reasonably within the scope of those activities which he was employed to perform for the police department — basically, these are to enforce the law and preserve the peace. I would add that an officer must carry out such duties with the appropriate reasonableness and care, and not exert an undue or unnecessary force to accomplish his official acts. Police officers, on or off duty, may use force in the execution of their appointed tasks. However, the use of force must be limited to instances where it seems reasonably necessary under the surrounding circumstances to accomplish a legitimate law enforcement purpose.
In Wolf v. Liberis (1987), 153 Ill.App.3d 488, 106 Ill.Dec. 411, 505 N.E.2d 1202, an Illinois appellate court addressed a case analogous to the one at bar where an officer negligently caused the death of a civilian as the result of a traffic collision. The Wolf court held:
“ * * * Although the general orders of the Chicago Police Department provide that policemen are ‘on duty’ 24 hours a day, that fact does not necessitate the conclusion that all acts taken by an off-duty police officer are deemed to be in the performance of his duties as a police officer. * * * [Citations omitted.]
“Liability will not be imposed on the municipality when the conduct of the off-duty police officer is so reckless and outrageous that it is deemed to be outside the scope of employment. In that situation, summary judgment is proper. Examples of conduct outside the scope of employment have included a police officer’s intentionally threatening to kill and then killing a complainant’s son so as to cause the complainant great emotional distress (Nelson v. Nuccio [1971], 131 Ill.App.2d 261, 268 N.E.2d 543, appeal denied [1971], 47 Ill.2d 590); off-duty police officers falsely arresting, falsely imprisoning, and sexually assaulting a complainant, even though their status as off-duty police officers was what enabled them to retain custody of the complainant (Gambling v. Cornish [N.D.Ill.1977], 426 F.Supp. 1153); and an off-duty police*337man’s breaking down the door of a neighbor’s apartment and shooting the occupant in the mistaken belief that he was entering his own apartment and shooting a burglar. Dzing v. City of Chicago (1980), 84 Ill.App.3d 704, 406 N.E.2d 121, appeal denied, 81 Ill.2d 590.” Wolf, supra, 153 Ill.App.3d at 492-493, 106 Ill.Dec. at 415, 505 N.E.2d at 1206; see, also, Dist. of Columbia v. Coron (D.C.App.1986), 515 A.2d 435 (district not liable for off-duty officer’s assault where he was dressed in civilian clothing and driving his own vehicle on a purely personal venture at the time of the incident); Strachan v. Kitsap Cty. (1980), 27 Wash.App. 271, 616 P.2d 1251; Fitzgerald v. McCutcheon (1979), 270 Pa.Super. 102, 410 A.2d 1270.
In reviewing the specific facts of this case, it is clear that there is absolutely no evidence that while off duty, Officer Lyles’ acts were motivated in whole or in part by legitimate law enforcement objectives furthering the purposes or interests of his employer, the city of Cleveland. In the absence of evidence from which reasonable minds could conclude that Lyles, although off duty, was acting within the course and scope of his employment when he performed the alleged tortious acts, summary judgment for the city of Cleveland was appropriate.
The pertinent facts in this case are that on February 13,1984, the appellants Donald Osborne and Jesus Figueroa were in a Cleveland bar together. Having been alerted to the fact that something may have happened to Figueroa’s car, both Osborne and Figueroa went outside where Figueroa’s car had been parked and observed that another auto had run into it, causing extensive damage. As Osborne approached Figueroa’s car, the driver of the other automobile, Officer Lyles (then off duty) got out of his car and yelled at Osborne to leave the premises. According to Osborne’s testimony, Lyles was not in police uniform, but was dressed in a T-shirt and slacks. Further, Osborne testified that Lyles twice told him to “get the fuck out of here.” When Osborne refused to leave, Lyles swung at Osborne with his fist. Osborne backed away, and Lyles went after him. Then they both swung at each other, and began scuffling. Next, Lyles slammed Osborne into the car and pulled a pistol out, stating, “Cleveland Police.” Osborne, not knowing whether his attacker was in reality a police officer or “just some crazy person with a gun,” ran towards the bar. Lyles struck Osborne in the shoulder with the gun as Osborne ran by him. Lyles chased Osborne into the bar and with his badge in his hand, put the pistol to Osborne’s head and forced him to lie upon the floor, face down at gunpoint. Lyles was yelling and screaming at Osborne to “stay on the fucking floor,” and at Figueroa to “back off.” Figueroa, also not realizing that Lyles was an off-duty officer, called the Cleveland Police and told them that they were being molested by a “man with a gun.” The police ultimately arrived and, not immediately recognizing that *338Lyles was an off-duty officer, almost shot him. However, one of the responding officers recognized Lyles, and a shooting was avoided.
Although the record does not show that Lyles was disciplined for his behavior, there was evidence that he was laid off from the police force for approximately three months.
The contortions to which the majority subjects the facts in this case, in an effort to make the facts fit its own theory, should convince the reader that the conclusions reached by the lower courts were correct in determining there was no evidence in this case from which reasonable minds could determine that Lyles was in the scope of his employment.
As the majority has suggested, it is true that generally an off-duty officer would have the responsibility to stop and assume control over the scene of an accident, and to do those things that are necessary under the circumstances. However, this case is not an instance where an off-duty officer had stopped at the scene of an accident involving others. Additionally, this is not the case of an off-duty officer taking charge of an accident scene to assist injured persons and to direct traffic. Conversely, the acts of the off-duty officer here were self-serving and not for the purpose of preserving the public peace or serving the public good. Here, the accident scene was occasioned by the off-duty officer’s own apparent negligence in losing control of his vehicle. Obviously, when Lyles said to Osborne to “get the fuck out of here,” and advanced upon him throwing punches, Lyles was not taking necessary and proper police action. Also, when Lyles slammed Osborne against the car, and then pointed a pistol at him, such actions could not reasonably be claimed to be within police department rules, even though during such scuffling Lyles stated, “Cleveland Police.” Nor can it be reasonably asserted that appropriate police procedure was being carried out when Lyles chased Osborne into the bar, striking him on the way, and then placing the gun to Osborne’s head and demanding that he go to the floor face down, and screaming “stay on the fucking floor.”
The evidence in this case is that Michael Lyles, while off duty from his employment with the city of Cleveland, apparently carried out an unprovoked assault involving the appellants. There was no evidence that Lyles’ attack was motivated by legitimate law enforcement objectives on behalf of the city of Cleveland. Following the appropriate law of respondeat superior in this case, a municipality is liable only for those acts of an off-duty policeman that fall within the scope of his employment, specifically, those acts he performs to enforce the law and preserve the peace. Liability will not be imposed on the municipality when the conduct of the off-duty officer is so reckless and *339outrageous that it is deemed to be outside the scope of his employment. In that situation, summary judgment is proper. See Wolf v. Liberis, supra.
For the reasons stated above, I submit the court of appeals correctly affirmed the trial court’s entry of summary judgment for the appellee, city of Cleveland.
Moyer, C.J., concurs in the foregoing dissenting opinion.