dissenting.
It is only through a truncated and carefully parsed recounting of what happened to Roland Davis and a misguided perception about the governing principles of law that the majority can find no warrant for concluding that Devereux, the institution charged with his care, had a non-delegable duty to protect him from harm and that his guardian ad litem is foreclosed from proceeding, alternatively, under a respondeat superior theory. Because the majority has erred in the analysis that it has utilized and because both of those conclusions are the byproduct of that error, I respectfully dissent.
The majority’s conclusion that Devereux owed Davis no nondelegable duty of care is faulty for three reasons. First, the majority’s result is fueled by the misapprehension that a nondelegable duty would impose absolute liability on Devereux, a consideration that gives rise to a concern for the continued existence and viability of the charitable organizations that most often are the providers of care to severely disabled individuals. Second, the majority’s reasoning, which proceeds largely through the application of well-settled principles governing imposition of a duty, reveals an essential confusion between how the Court determines that there is any duty owed and the separate question about whether a duty is non-delegable. Third, the majority rests its decision on the presumption that there is no need for this Court to act in the absence of a fulsome record demonstrating that acts like the one that led to the horrific burns Davis suffered are “pervasive.” Ante at 298, 37 A.3d at 487. Each of those flaws individual*309ly would be troubling enough, but taken together, they cannot go unquestioned.
The majority’s conclusion that there is insufficient evidence in this record to permit Davis to withstand summary judgment on a respondeat superior theory is equally flawed. That conclusion arises from the Court’s mistaken belief that there is no evidence in this record that would support a jury’s conclusion that McClain acted, even in part, with the purpose to serve her employer, defendant Devereux. It is indeed a mistaken belief because it rests on a particular version of the facts drawn from limited sources. Relying on those few facts, the majority ignores significant evidence in the record that a reasonable jury might find sufficient to demonstrate that McClain’s act, inexplicable to the majority, was grounded in a terribly misguided effort to carry out her duties and thus to serve the purposes of her employer.
In my view, on both of the issues that confront the Court in this appeal, the majority has pursued a flawed approach to the essential legal principles and has inappropriately identified and weighed the relevant facts. In doing so, the majority has reached erroneous conclusions, as a result of which I respectfully dissent.
I.
Much of the basis for the difference between my views and those expressed by the majority arises from the relative infrequency with which this Court has considered the concept of a nondelegable duty. Because it is a concept not often discussed, it is one that has become misunderstood, and therefore improperly analyzed by the majority, leading to an erroneous result. There are, it seems to me, three basic errors that the majority has made and that cause me to dissent from its conclusion that the duty Devereux owed to Davis was not a non-delegable one.
First, the conclusion that a duty is non-delegable does not equate with absolute, or strict, liability, as the majority apparently believes. On the contrary, as this Court has concluded, it is the *310duty that is absolute; whether there is also liability is an entirely separate question.
Second, the question in this ease is not whether there is a duty owed at all; plainly Devereux owes a duty of care to Davis. The question is only whether that duty of care qualifies as one that is non-delegable and therefore not discharged by taking care in hiring, training or supervising the employee tasked with performing it. As a result, the majority’s discussion of the ordinary four-part test for determining whether there is a duty in the first place is not only unnecessary but comes close to suggesting that Devereux owed Davis, and all of the other residents in its facilities, no duty of care at all.
Third, in performing the usual four-part analysis, the majority presumes that there can be no duty owed in the absence of a record that would amount to “pervasive” abuses of individuals like Davis. Not only is that supposition yet another departure from the ordinary manner of approaching such decisions, but it overlooks the evidence suggesting that particularly vulnerable individuals like Davis in fact are increasingly subjected to such abuses.
For me, it is these three fundamental flaws in the majority’s analysis that have led it to an erroneous conclusion and that calls for this dissent.
A.
Although the imposition of a non-delegable duty has been a relatively infrequent occurrence, this Court has previously addressed it. See Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 436, 153 A.2d 321 (1959). In determining whether the owner of a building, who hired an expert to demolish it, owed the adjoining building’s owner a non-delegable duty of care, the Court’s approach to the question is instructive. In considering that question, the existence of a duty of care to the adjoining building owner was obvious, and the only question was whether hiring an independent contractor, which under ordinary circumstances would afford the owner a complete shield against *311liability, discharged that duty of care. Id. at 433-36, 153 A.2d 321. In concluding that it did not, this Court reasoned that there are some duties that simply cannot be delegated away, and concluded that the performance of building demolition created such a risk of injury to the neighbor that it qualified as one of them. Id. at 438, 153 A.2d 321; see also Great Northern Ins. Co. v. Leontarakis, 387 N.J.Super. 583, 592-93, 904 A.2d 846 (App.Div.2006) (concluding that duty of lateral support owed to adjoining landowner is non-delegable); Marek v. Prof'l Health Servs., Inc., 179 N.J.Super. 433, 441-42, 432 A.2d 538 (App.Div.1981) (concluding that health care provider had non-delegable duty “to carefully and diligently diagnose within reasonable professional standards any condition or disease positively appearing on [the plaintiffs] chest x-ray” notwithstanding referral to independent contractor radiologist).
This Court, in undertaking its analysis, made it plain that the existence of a non-delegable duty does not equate with the imposition of strict liability on the master, Majestic Realty, supra, 30 N.J. at 436, 153 A.2d 321, nor does it implicate the level of care used by the master in choosing the servant in the first place. Instead, when the servant performs a non-delegable duty, the determination of the master’s liability turns on whether the servant used due care in the performance of that duty, not upon whether the master used due care in selecting or training the servant. As a result, if the duty is non-delegable, the employer will be liable to the third party if the employee failed to act with due care regardless of whether the act of the employee was within or outside of the scope of employment. See id. at 436, 438-39, 153 A.2d 321.
Although the liability of the employer could be said to be direct, rather than vicarious, it does not equate with strict, or in the language of the majority, see ante at 289, 37 A.3d at 481, absolute liability. Instead, rather than judging the employer’s liability based on its negligence in hiring, training or supervising the employee, the employer’s liability is judged by the care exercised *312by the employee. As this Court has explained, “[t]he duty is absolute, not the liability.” Majestic Realty, supra, 30 N.J. at 438, 153 A.2d 321 (emphasis added). Although the Court there addressed whether a non-delegable duty could be discharged by hiring an independent contractor, the analysis of the manner in which a non-delegable duty operates as between the employer and an employee is no different. The duty remains that of the employer, with the result that the shield of respondeat superior disappears. The employer becomes responsible for the employee’s act, and the employer’s liability is tested by the care with which the employee acted rather than by the care with which the employer acted in hiring, training or supervising the employee. Id. at 436, 153 A.2d 321.
Nor is the majority’s effort to distinguish Majestic Realty as being limited to circumstances involving independent contractors and inherently dangerous activities, see ante at 299, 37 A.3d at 487, persuasive, because that approach overlooks the analytical framework ordinarily utilized to establish the existence of a nondelegable duty entirely. Carefully read, the Majestic Realty decision squarely represents the appropriate framework that has long governed the non-delegable duty analysis.
Non-delegable duties, although neither particularly familiar nor commonly found, are a well established part of the law of agency. See Restatement (Second) of Agency §§ 214, 219(2)(c). The concept of a non-delegable duty and the manner in which it operates as it relates to liability of the master, however, can only be properly understood by analyzing two separate sections of the Restatement.
First, as Section 219(1) makes clear, ordinarily, the master is liable only for torts that are committed by a servant while the servant is acting within the scope of his or her employment. That limitation, however, is subject to several exceptions, including the one found in Section 219(2)(c), which provides that if the servant’s conduct violated a non-delegable duty of the master, then the *313master will be liable even if the servant’s conduct fell outside the scope of his or her employment. In essence, what Section 219(2)(c) means is that there are some duties which the master simply cannot delegate away. Therefore, in the employment context, the employer remains liable for acts of an employee that violate a non-delegable duty, regardless of whether the employee was acting within or outside of the scope of employment at the time.
Section 214 of the Restatement attempts to explain the concept of a non-delegable duty, defining it broadly in terms of “a master or other principal who is under a duty to provide protection for or to have care used to protect others or their property----” That is to say, if the master is charged with the duty to provide protection for another, the duty is a non-delegable one, and the master remains liable for a breach of that duty of care even though a servant has been entrusted with the actual performance of that duty. In the words of the Restatement,
A master or other principal who is under a duty to provide protection for or have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty.
¡Restatement, supra, § 214.]
Although the Restatement itself notes that the concept of nondelegable duty is too complicated to define fully, id. at comment a (observing that “[i]t is beyond the scope of the Restatement of this Subject to do more than state the general rule and indicate the most frequently arising situations in which a master or other principal may be liable, although without personal fault, for conduct of his agents or servants, whether or not they are acting in scope of employment”), the commentary offers as illustrations a series of circumstances that would leave the master hable to another even though the act of the servant is both wrongful and outside of the scope of his or her employment.
For example, a railroad company would be liable to a passenger assaulted by a conductor who was responsible for “tak[ing] charge of [the] train.” Id. at comment e, illustration 3. Likewise, a hotel *314would be liable to a guest for theft from the guest by a chambermaid even if the hotel believed that the employee was honest. Id. at comment e, illustration 5. Those illustrations are noteworthy because both identify situations in which the act of the employee is criminal in nature, and presumably outside of the scope of the employment, and yet the employer remains liable to the injured party. Strictly speaking, that result follows because the nature of the duty owed, for the care and well-being of the other, is such that it cannot be delegated. The Restatement’s illustration involving the train conductor is significant for another reason. It illustrates the circumstance in which there is a non-delegable duty of care because the employer has placed the employee in a position in which it is foreseeable that the enforcement of the employer’s rules will result in altercations with others. Id. at comment e, illustration 3. In that circumstance, the employer remains liable to the one who has been injured when the employee, even if acting in an otherwise unacceptable and overzealous fashion, has exerted force in carrying out the employer’s rules.
The question, then, is whether the master, in this case Devereux, has been charged with the performance of a non-delegable duty. In addressing that question, the majority first rejects all of plaintiffs arguments to the effect that this Court has previously applied a non-delegable duty approach in matters arising in the context of in loco parentis relationships. Ante at 289-92, 37 A.3d at 481-83. With that as its backdrop, the Court then reasons that if in such similar contexts we have not concluded that a nondelegable duty exists, it would be unwarranted to find one in this matter.
In part, the majority reaches its conclusion by asserting that this Court rejected the argument that there was a non-delegable duty owed in the employment discrimination context, see ante at 291 & n. 4, 37 A.3d at 482 & n. 4 (citing Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 619-20, 626 A.2d 445 (1993)). Although accurate, that observation is of little relevance to the larger question here. One can readily conclude that nothing in an ordinary employment *315situation, even as it relates to employees who fall within the classes protected by our strong laws against discrimination, would meet the test of section 214 of the Restatement. The majority finds further support for its conclusion in its observation that this Court did not utilize the non-delegable duty approach in the somewhat similar settings of children who were victimized by sexual misconduct in school, see Frugis v. Bracigliano, 177 N.J. 250, 827 A.2d 1040 (2003), or in a private boarding school, see Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 902 A.2d 900 (2006). By implication, the majority concludes that this Court should refuse to impose a non-delegable duty here because of the similarities of a vulnerable population, whose care had been entrusted to an entity that stood in loco parentis.
That assertion, however, reads far more into the opinions of the Court in Frugis and Hardwicke than is actually there. In the former, the Court had no need to consider whether the school’s duty to the child was non-delegable, because the plaintiff’s theory of recovery rested on negligent supervision. Frugis, supra, 177 N.J. at 257-58, 827 A.2d 1040. One cannot conclude from the absence of a discussion about non-delegable duties that this Court rejected any possible application of the theory in its entirety. The Hardwicke discussion is even less supportive of the majority’s analysis. There, the Court relied on the Restatement, as does the majority today, quoting with obvious approval the passage concerning non-delegable duties. Although the Appellate Division in Hardwicke had utilized a non-delegable duty approach, see Hardwicke v. Am. Boychoir Sch., 368 N.J.Super. 71, 104-05, 845 A.2d 619 (App.Div.2004), this Court based its conclusion about liability instead on the provisions of the Child Sexual Abuse Act. Hardwicke, supra, 188 N.J. at 99-102, 902 A.2d 900. In the process, however, this Court neither accepted nor rejected the Appellate Division’s non-delegable duty analysis.
In both of those decisions, this Court found a basis for its analysis of liability other than one that would have rested on *316concluding that there was a non-delegable duty, but that says nothing about whether it would apply to parties such as the ones now before the Court. That being so, the majority’s implicit suggestion that this Court has rejected the argument being raised by plaintiff, and urged upon us by the amici, or that we instead have “underscore[d] the continued viability of reasonable care as the standard,” ante at 291, 37 A.3d at 482, is incorrect.
Lost in the majority’s reasoning is the fundamental basis for imposition of a non-delegable duty found in the Restatement definition itself, because nowhere in its analysis does the majority consider whether Devereux had “a duty to provide protection for or have care used to protect,” Restatement, supra, § 214, Davis or the other residents who lived in and were cared for in its facility. Lost, as well, is the fundamental basis this Court identified and on which we concluded that a duty is non-delegable, namely, that its “value ... to the community is so significant that the law cannot allow it to be transferred to another.” Majestic Realty, supra, 30 N.J. at 439, 153 A.2d 321. Instead of applying that well-established rule of law, the majority substitutes its expression of concern about the impact of a finding by this Court that Devereux owed Davis a duty of care that was non-delegable. See ante at 289, 37 A.3d at 481. Based on that concern alone, the majority concludes that a finding that Devereux’s duty to Davis is nondelegable would be unwise.
There are, of course, strong parallels between the circumstances in which Davis found himself and the plaintiffs this Court has previously considered and as to which, eoncededly, our approach was a different one than the imposition of a non-delegable duty. But, by comparison, Davis is in an even more precarious position and more in need of protection by the entity to whom his care has been entrusted. Although he is an adult, and although he had shown aggressive tendencies in his residence, he is vulnerable in the extreme. His inability to communicate is profound, and even after he was suffering from severe burns inflicted upon him by *317McClain, he obeyed her direction that he take a shower. More to the point, he was totally incapable of explaining to anyone what had happened to him, and was, therefore, incapable of protecting himself from any future injury. Not only was he vulnerable because he is always under the supervision of adults who exerted power over him, but Davis is even at the mercy of his caregivers because he lacks any semblance of the ability to point out his attacker. Had the attack left no visible wounds, Davis would have had no way to describe what he had endured or at whose hands. For me, Davis falls squarely within the language of this Court’s precedents that have imposed a non-delegable duty and the contemplation of that concept as described in the Restatement.
This dispute does not mark the first time that a court has been called upon to consider whether an organization or government entity charged with the care of children or of disabled adults has a non-delegable duty of care. In a particularly persuasive opinion, the Supreme Court of Indiana held that a residential facility that undertook “the entire responsibility for [a resident’s] comfort, safety and maintenance” had a non-delegable duty to protect a severely disabled fourteen-year-old from sexual assault by the nurse’s aide charged with cleaning and dressing him. Stropes v. Heritage House Childrens Ctr., Inc., 547 N.E.2d 244, 253-54 (Ind.1989). Moreover, consistent with the precedents that are expressed in the Restatement, having concluded that the duty was non-delegable, the court held that the facility was liable for any breach by its employees, regardless of whether the facility acted with care in hiring and training them and regardless of whether they acted within the scope of their employment. Id. at 251-54.
Although there is no clear consensus among our sister jurisdictions, to me the more recent trend and the more persuasive lines of authority militate in favor of concluding that the duty owed is indeed a non-delegable one. See, e.g., Miller v. Martin, 838 So.2d 761, 766-70 (La.2003) (holding that State Department of Social Services had non-delegable duty to prevent foster parents from abusing children in state custody that left State liable even for *318intentional acts of abuse); Hinckley v. Palm Beach Cnty. Bd. of Cnty. Comm’rs, 801 So.2d 193, 195-96 (Fla.Dist.Ct.App.2001) (holding that county had special relationship, see Restatement (Second) of Torts § 315, with disabled adult that gave rise to nondelegable duty to prevent sexual abuse of passenger with developmental disabilities by driver of van used for special transport, even if van service was an independent contractor); see also West v. Waymire, 114 F.3d 646, 649 (7th Cir.1997) (suggesting that state law could impose non-delegable duty on police department to prevent officers from sexually molesting minors and adults, but holding that 42 U.S.C. § 1983 does not permit vicarious liability). But see, e.g., Maguire v. Montana, 254 Mont. 178, 835 P.2d 755 (1992) (declining to impose non-delegable duty on State to protect resident of developmental center from rape by employee charged with her daily care); Worcester Ins. Co. v. Fells Acres Day Sch., 408 Mass. 393, 558 N.E.2d 958, 967-68 (1990) (declining to impose non-delegable duty on daycare center for staffs sexual abuse of children).
In the end, the majority’s apparent misunderstanding of the concept of non-delegable duties and its misperception of the well-settled precedents from this Court have led it to an erroneous conclusion with which I cannot agree.
B.
Further confounding the majority’s opinion, and further illustrating what seems to me to be a fundamental misunderstanding of the very concept of non-delegable duties, the majority turns to the usual and ordinary analysis for determining whether a duty exists, see ante at 292-94, 37 A.3d at 483-84 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993)), concluding that plaintiff cannot meet that test either. That analysis might be appropriate if we were considering whether Devereux owed Davis any duty at all, as this Court did, for example, in the context of considering whether a social host owed a theretofore non-existent duty of care to another when serving guests alcohol, *319see Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984) (considering essential concepts of foreseeability, risk and public policy), or when this Court in Hopkins addressed the existence of a duty owed by a realtor to those who visit open houses, Hopkins, supra, 132 N.J. at 439-45, 625 A.2d 1110. But it is an entirely inappropriate framework to use in this dispute, because, as even the majority concedes, ante at 291-93, 37 A.3d at 483, Devereux unquestionably owes a duty of care to Davis, and the only question that the Court should be addressing is whether or not that duty is non-delegable.
Nonetheless, in electing to utilize the ordinary four-part framework for deciding whether there is a duty owed, see Hopkins, supra, 132 N.J. at 439, 625 A.2d 1110, the majority finds no basis for imposing a non-delegable duty upon Devereux. Although reliance on the Hopkins test is misplaced, were the Court to apply it faithfully, it would not have reached the result that it did concerning the duty of care that Devereux owes Davis. Similarly misplaced is the majority’s oblique suggestion, confined to a footnote, ante at 302 n. 10, 37 A.3d at 489 n. 10, that the Charitable Immunity Act, N.J.S.A. 2A:53A-7, would necessarily bar recovery. Any analysis of the implications of that statute would also be subject to this Court’s holding in Hardwicke, supra, 188 N.J. at 97, 100-02, 902 A.2d 900.
In analyzing the relationship between Davis and Devereux, despite recognizing the strong statements by the Legislature, the Governor, and by this Court concerning the rights of persons with disabilities and the strict oversight that applies to entities like Devereux, see ante at 293-96, 37 A.3d at 484-85, the majority reasons that those protections somehow suffice. In and of itself, that is a remarkable departure from similar circumstances in which this Court has been compelled to conclude that a duty exists. Where in the past this Court has understood strong pronouncements of the Legislature and the Governor, even in the context of a closely regulated industry, to underscore the need for *320equally strong pronouncements emanating from the common law, see Kelly, supra, 96 N.J. at 544—45, 476 A.2d 1219, today the Court apparently concludes that we can be comforted by those pronouncements, declining to find that the residential facility owes any other duty of care. Where in the past this Court has discerned from the acts of the Legislature and the Governor them expressions of public policy and applied it to our analysis of the common law, today the Court indulges in an exercise that weighs those concerns so as to advance a different public policy.
Turning to the second prong of the Hopkins test, the Court concludes that the nature of the risk is not sufficiently foreseeable to support the imposition of a duty. In part because the different amici do not agree completely on how the scope of the duty should be defined, the Court sees no basis to act. See ante at 296-98, 37 A.3d at 486. Yet, it cannot be more plain that the risk of injury to someone like Davis is foreseeable, because it is certainly not unexpected that a caregiver, like McClain, would decide to retaliate or defend herself against one who had so recently attacked her. That some of the amici urge this Court to find that a broad non-delegable duty exists, touching upon entities and individuals well in excess of those before the Court, is hardly a reason to find none at all.
Nor does the majority’s evaluation of the third Hopkins factor square with the record. Resting on its assertion that Devereux was careful in hiring, screening, and training McClain, the majority comments, among other things, that “[tjhere is no evidence that Devereux ignored hints that McClain had a potential for violence,” see ante at 298, 87 A.3d at 486. But that belief is belied by the ample evidence that in the days immediately prior to her attack on Davis, McClain was twice attacked by him, that she demanded that Devereux do something to relieve her of the assignment or to assist her in carrying it out, and that she was again assigned to care for him without any assistance. Simply suggesting that Devereux screened and hired her with care in the first place *321overlooks its abject failure to recognize the impending clash between her and Davis when her plea for relief was ignored. That being the case, the third factor, which focuses on the opportunity and ability to exercise care, also weighs in favor of the imposition of a duty.
Finally, in considering the fourth factor, the public interest, the majority again reasons that unless and until the problem of violent assaults on the most vulnerable members of our society becomes “pervasive,” see ante at 298, 37 A.3d at 487, there is no basis on which this Court should act. Pointing to its legitimate concerns about a potential impact on the continued viability of the charities that most often provide care for persons with disabilities, see ibid., the majority declines to even attempt to define the parameters of a duty that would protect those entrusted to the charities’ care from abuse, see ante at 298-99, 37 A.3d at 487 (observing that “the ‘public interest’ consideration identified in Hopkins is also negatively implicated by the amorphous boundaries of the duty proposed”).
I do not suggest that there are many circumstances in which it would be appropriate to conclude that a non-delegable duty exists, but if ever there were a circumstance of “a master ... who is under a duty to provide protection for or to have care used to protect [an]other[ ],” Restatement, supra, § 214, surely it is found in the relationship between Devereux and Davis. Indeed, the majority concludes that Devereux’s duty begins and ends with its care in hiring, training and supervision of its employees, leaving no room for this Court to conclude that there is a heightened duty in the absence of a record that would “establish a pervasive pattern of abuse that would signal that existing law had failed to protect these vulnerable members of our society.” Ante at 295-96, 37 A.3d at 485.
Along the way, the majority rejects as inadequate justification the increasingly strong expressions of concern voiced by this Court, see Fees v. Trow, 105 N.J. 330, 338, 521 A.2d 824 (1987), by *322our Legislature, see New Jersey Developmentally Disabled Rights Act, N.J.S.A 30:6D-1 to -12.6, and by our Governor. Their words and acts speak volumes about their concern for individuals like Davis. When signing “Tara’s Law” to create a registry of offenders against individuals with developmental disabilities, Governor Christie declared that “[a]buse at the hands of a caregiver is a reprehensible action. The legislation that I am signing today is an important tool to help safeguard those with developmental disabilities from harmful caregivers taking advantage of their position.” See Chris Megerian & Clair Heininger, Gov. Chris Christie Signs Caregiver Abuse Registry Law, NorthJersey.com, (April 30, 2010), http://www.northjersey.com/news/state/politics/043010_Gov_Chris_ Christie_signs_caregiver_abuse_registryJlaw.html.
Unmoved by those pronouncements, and through its creation of a new “pervasive pattern of abuse” standard, the majority deems insufficient numerous reported instances of similar attacks, many here in New Jersey. See, e.g., Michelle L. Meloy, Sexual Victimization of Underserved and Understudied Populations, Rutgers University-Camden, 2008, 22-30, available at http://www.state.nj. us/dea/divisions/dow/resources/pdfs/sexualvictimizationreport_ 070908.pdf (observing that “[ajbuse is one of the hidden areas in the life” for individuals with developmental disabilities; reporting on statistics of sexual and physical abuse); Editorial, Investigation Needed to Ensure Safety of Developmentally Disabled, Star-Ledger, May 3, 2010, available at http://blog.nj.com/njv_editorial_ page/2010/05/safety_of_developmentally_disa.html (calling for investigation into case of 28-year-old Tara O’Leary, who died after months of starvation and physical abuse at state-licensed sponsor home for the developmentally disabled); Susan K. Livio, Coalition Against Institutional Child Abuse, available at http://www.caica. org/STEPHEN_KOMMINOS_choking_death_at_Bancroft_group_ home.htm (reporting on 2007 death of resident at Bancroft coupled with seven substantiated incidents of abuse and neglect inflicted upon him, including being hit in head by employee/caregiver); Michelle Sahn, Judge Merges Group-Home Suits, Home News Tribune, Nov. 13, 2002, at Bl, available at http://www.keefebartels. *323eom/CM/PressRoom/gc-GroupHome.pdf (reporting on death of group home resident Danielle Gruskowski, who suffered severe burns on her face shortly before her death when caregiver allegedly threw hot tea at her); Health Worker Admits Abusing Autistic Teen, Courier-Post (Cherry Hill, NJ), Sept. 9,2002, at B1 (reporting on guilty plea of residential facility employee who pinned down and choked autistic teenager in her care).
In contrast, when this Court concluded that a social host owed a duty of care arising from serving alcohol to a guest, it did so based on a comparatively thin record of statistics, confining its comment to a footnote. Kelly, supra, 96 N.J. at 545 n. 3, 476 A.2d 1219. One can only wonder how many more Roland Davises, Danielle Gruskowskis and Tara O’Learys will need to suffer before this Court finds the pattern sufficiently pervasive for it to extend to them the care afforded to landowners, see Majestic Realty, supra, 30 N.J. at 438, 153 A.2d 321, imbibers of alcohol, see Kelly, supra, 96 N.J. at 548, 476 A.2d 1219, or open house visitors, see Hopkins, supra, 132 N.J. at 446, 625 A.2d 1110.
II.
The majority also rejects the alternate basis on which Davis urges us to find that liability of Devereux may rest, concluding that the appellate panel erred in its evaluation of ordinary principles of respondeat superior and in its conclusion that the record sufficed to withstand summary judgment with respect to McClain’s purpose to serve her employer. Although there can be little debate about the law that governs this aspect of the claim, I dissent because the majority has overlooked the significant evidence in this record from which a jury could find that McClain’s act was one that was taken within the scope of her employment.
The majority’s approach begins with its analysis of the scope of employment, reasoning that McClain’s act can in no way be seen to fit within its parameters. Even so, the majority must concede that the Restatement, which we have previously relied upon, see Di Cosala v. Kay, 91 N.J. 159, 169, 450 A.2d 508 (1982), comments *324in two separate sections on the liability of the master for the use of force by a servant. See Restatement, supra, §§ 228, 245.
First, the Restatement, in its general statement about the scope of employment, recognizes that the use of force, even if intentional, may indeed fall within the scope of one’s employment, at least if “the use of force is not unexpectable by the master.” Restatement, supra, § 228(d). In a similar vein, as the Restatement points out, “a master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.” Id. at § 245.
In further explaining the proper application of the test where force has been used, the Restatement comments about the liability of the master when the servant uses excessive force or is mistaken in the use of force. Id. at § 245 comment e. In those circumstances, “the master is also subject to liability if the servant, while intending to act for his master, makes a negligent mistake of fact, or in an excess of zeal uses more than necessary force, or commits an error of law as to his privilege, or does an act combining all of these errors.” Ibid.
Nor, in the view of the Restatement, is the master necessarily shielded from responsibility for a servant’s use of force which is “actuated by personal motives.” Id. at comment f. In that instance, the master remains liable “if the servant acts in part because of a personal motive, such as revenge.” Ibid. Only “if the servant has no intent to act on his master’s behalf’ will the master be relieved of liability. Ibid. Although the Restatement’s comment explains that the fact of “a servant act[ing] in an outrageous manner or inflicting] a punishment out of all proportion to the necessities of his master’s business is evidence indicating that the servant has departed from the scope of employment in performing the act,” the implication is that such behavior is not proof of an act outside of the scope of employment, but only evidence thereof. Ibid.
*325This Court has held that the test for determining whether any particular act is within or outside of the scope of employment involves a fact-specific inquiry. See Di Cosala, supra, 91 N.J. at 168-69, 450 A.2d 508; Gilborges v. Wallace, 78 N.J. 342, 351-52, 396 A.2d 338 (1978). In describing the test, this Court has commented that it “refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.” Di Cosala, supra, 91 N.J. at 169, 450 A.2d 508 (quoting W. Prosser, Law of Torts, 460-61 (4th ed.1971)).
It is in this context that Chief Justice Weintraub’s oft-quoted comment setting forth the test to be applied is most instructive. See Gibson v. Kennedy, 23 N.J. 150, 158, 128 A.2d 480 (1957). As he pointed out,
[a]ssaults and batteries rarely, if ever, redound to the economic advantage of the employer, and it may readily be assumed the employer would not wish them. The outrageous quality of an employee’s act may well be persuasive in considering whether his motivation was purely personal, but if the employee is within the scope of employment and intends to further the employer’s business, the employer is chargeable even though the employee’s conduct be “imbecilic.”
[Ibid.]
And as Judge Learned Hand observed: “motives may be mixed; men may vent their spleen upon others and yet mean to further their master’s business; that meaning, that intention is the test.” Nelson v. Am.-West African Line, Inc., 86 F.2d 730, 731-32 (2d Cir.1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937). Likewise, as even the majority today observes, “[wjhen the employee’s conduct—however aggressive and misguided— originated in his or her effort to fulfill an assigned task, the act has been held to be within the scope of employment.” Ante at 303, 37 A.3d at 490 (summarizing holdings in G'ibson and Nelson).
In addressing more generally the use of force by an employee, the Restatement comments on the fact that there are some forms *326of employment that are more likely to bring an employee into a situation in which force will be used. Restatement § 245 comment a. Although the specific situations that the Restatement identifies do not mirror the one now before this Court, the comment points out that “the liability of the principal depends fundamentally upon the likelihood of a battery or other tort in view of the kind of result to be accomplished, the customs of the enterprise and the nature of the persons normally employed for doing the work.” Ibid. By and large, then, if McClain’s duties were such that there was a likelihood of a physical altercation, her effort to protect herself might well have been motivated by her belief that it would enable her to carry out the duties assigned to her.
Focusing on McClain’s act, and upon a limited description of the minutes that preceded it, the majority concludes that there is no basis in the record on which a reasonable jury could find that she was actuated even in part to serve the interests of Devereux. But it is only by reciting a few of the facts and only by relying on the opinion set forth in the police report that her act was premeditated that the majority can so conclude. That is, the majority points out that McClain arrived at work, sat for a few moments, then went to the microwave and heated water, that she did so because she thought Davis might kick her, that she then went upstairs and threw it on the sleeping Davis without a word and without provocation. Further, the majority points to McClain’s statement to the police, that she was angry about her boyfriend’s recent homicide, as the sole evidence concerning the motive for her horrific act. Ante at 307, 37 A.3d at 492.
To be sure, that summary lends support to the conclusion that McClain’s action either was entirely motivated by her anger over her boyfriend’s homicide or was committed in retaliation against Davis for his prior aggressions. But even the majority’s recitation includes within it the observation that McClain armed herself with a cup of scalding water because she was anticipating that Davis would attack her. Ante at 281, 37 A.3d at 476. That reason for *327having the heated water with her in the first place, however, is not inconsistent with having a purpose to serve the interests of Devereux. On its face, then, it would suffice to withstand summary judgment.
Moreover, the record reflects much evidence that has not found its way into the majority’s opinion but that bears on the question of why McClain would approach Davis with a cup of boiling water in her hand. During the six months leading up to the incident, Davis, who had a long history of aggressive and assaultive behavior toward staff members, had been having many more such behaviors, to the point that there were concerns that he might be suffering from a medical condition that bis limited communication skills left him unable to explain. He did not display these aggressions with all of the staff, but instead demonstrated positive attachments to at least one of his caregivers. That staff member, however, was not McClain. On the contrary, it is plain from this record that McClain had become the target for his aggressive outbursts.
On the two days that immediately preceded McClain’s ill-fated decision, Davis had violently attacked her, each time with sufficient force that he had to be restrained, removed from her presence, and turned over for the balance of the day to another staff member or supervisor with whom he had no conflict. McClain’s response to the first of those incidents is telling, because she “lost her cool,” and demanded to know what her supervisor was going to do about Davis’s attacks on her. In response, Devereux did not change McClain’s assignment, nor did Devereux place Davis in the care of any of the other staff members, including any of the others with whom he had more positive interactions. That failure to act on Devereux’s part led directly to the second attack on McClain, which took place the day before the incident in which Davis was so horribly burned. That time, Davis attacked McClain in the basement and had to be restrained and removed from her presence by two Devereux *328caregivers, a supervisor and an employee, one of whom then spent the rest of the day caring for Davis without incident.
In spite of McClain’s request, indeed her plea, that she be afforded some protection or help against a further attack, she was again assigned to Davis, and tasked with getting him out of bed. It is significant that the increase in Davis’s aggressions, to the extent that they had been documented during the prior six months, were most often observed at bedtime and upon awaking in the morning. Confronted with those facts, a reasonable jury could conclude that McClain, not having been relieved of her duty to work with Davis even temporarily, and not in the company of anyone to assist her, could have believed that the only way to complete her assigned task of getting him out of bed was to be able to defend herself in the face of a renewed attack.
Nor is it accurate to conclude from the description of the attack as “premeditated,” a word chosen by the police officer who summarized McClain’s statement, that it was not a response to her concern about a renewed attack and therefore was unprovoked. The record reflects statements of one of the two other on-duty staff personnel that she heard McClain first speak to Davis and heard him begin to tantrum. Although the two statements attributed to her, one of which the majority has quoted, are not entirely consistent, it is clear that Davis was awake and was not going to get up when McClain entered the room. The other staff member reported hearing McClain first shouting at Davis either “I told you, you wasn’t sleeping” or “you’re not going to sleep now.” She described the sounds he then began to make first as “screaming and stomping” and then as a kind of “scream [that] was different than” his usual screaming, presumably his response to being burned as McClain ordered him to get into the shower.
Although McClain herself has never been deposed, a reasonable jury could conclude that she first began to fulfill her assigned work duty of getting Davis out of bed and only threw the scalding water on him when she believed either that he was not going to comply by getting up or that she was again about to be attacked. *329In either event, applying the Gibson rule would lead to the conclusion that she indeed was engaging in an act, within the scope of her duties, and that she was actuated, at least in part, to serve the purpose of Devereux. That her choice, in the words of the Court in Gibson, was an “imbecilic” one, does not mean that it was not made at least in part in an effort to carry out her assigned task. Gibson, supra, 23 N.J. at 158, 128 A.2d 480. Nor, for that matter, did this Court, either in Gibson or today, suggest that the choice must be noble or even rational. The majority today has concluded that applying the scope of employment test, as to which we all agree, to the facts leaves no room for a jury to find that McClain had any purpose to serve Devereux. But applying the test to all of the facts, and giving the opponent of the motion the benefit of all of the favorable inferences, makes it plain that the majority’s conclusion is mistaken.
That McClain’s act of tossing scalding water on Davis was a brutal act is beyond question; that it was entirely devoid of any intent on her part to perform the task assigned to her of getting him out of bed and about his daily activities, such that Devereux bears no responsibility to him is not, in my view, so beyond debate that no reasonable jury could find otherwise. This Court has repeatedly cautioned our trial courts about the difficulty of evaluating intent and has repeatedly commented that it is often inappropriate for summary judgment. See Simonson v. Z Cranbury Assocs. P’ship, 149 N.J. 536, 540, 695 A.2d 222 (1997) (observing that “summary judgment is usually inappropriate when factually sensitive issues such as intent are present”); cf. Bedrock Founds., Inc. v. Geo. H. Brewster & Son, Inc., 31 N.J. 124, 132-33, 155 A.2d 536 (1959) (commenting that evidence of trade custom and usage should be considered by jury to decide parties’ intent).
The debate between the majority and me about the meaning and implications of the police summary of McClain’s statement and the two statements given by the other staff member well illustrates the inherent danger of disposing of the respondeat superior claim by way of summary judgment. In similar circum*330stances, other courts have recognized that although egregious criminal acts “lend themselves to arguably the most instinctive conclusion that [they] could never be within the scope of one’s employment ... the resolution of the question does not turn on the type of act committed or on the perpetrator’s emotional baggage.” Stropes, supra, 547 N.E.2d at 248-49 (concluding that sexual assault by staff member on severely disabled individual in residential facility should not have been dismissed without trial); see Marston v. Minneapolis Clinic of Psych. and Neuro., 329 N.W.2d 306, 311 (Minn.1982) (concluding that employee’s personal motivation should not be considered in respondeat superior analysis). The majority should be similarly circumspect in its pronouncement that this record falls short.
III.
In the end, I dissent because it is clear that the majority has misperceived the meaning of non-delegable duties, and has misapplied, therefore, the law that governs this Court in finding that such a duty exists. In doing so, this Court finds ample room to protect property but not to protect people, leaving largely defenseless those among us who are the most vulnerable members of our population. Moreover, I dissent because the majority is unmoved by the reality that there will be people like McClain, trying to perform work with a challenged person like Davis, who will act in ways that, while we need not condone them, nonetheless were actuated in part by service to their employer. Creating an impenetrable shield around the facility charged with the care of the profoundly disabled Roland Davis in these circumstances hardly advances the cause of a just society. I therefore respectfully dissent.
For affirmance in part; reversal in part—Chief Justice RABNER and Justices LaVECCHIA, ALBIN and PATTERSON and Judge WEFING (temporarily assigned)—5.
For dissent—Justices LONG and HOENS—2.