concurring.
I write separately, if briefly, to underscore the area of my agreement with the majority and the area of my disagreement with the dissent. The majority concludes that the third prong of the test outlined in Chesterman v. Barmon, 305 Or 439, 442, 753 P2d 404 (1988) — an act “of a kind which the employee was hired to perform” — requires an assessment of whether, given the conduct authorized by the employer, it was reasonably foreseeable that the employee would commit the tort in question. 156 Or App at 363-64. The dissent, in contrast, believes the majority’s test is too narrowly drawn and that connection to the employee’s job responsibilities sets the boundaries of foreseeability. 156 Or App at 370.
The dissent’s standard reduces to something perilously close to strict liability, in my view. Here, for example, the dissent concludes that because defendant directed Davis not to permit Bray to park in the garage and because Bray (not Davis, it is worth noting) had threatened to “get even” in connection with a prior parking dispute, stabbing Bray to death was sufficiently connected to Davis’s employment responsibilities to create liability for his employer. See id. Presumably, then, respondeat superior liability also would attach in the following two situations:
• A lawyer in Portland gives a law clerk a document that must be physically delivered no later than 5 p.m. that day to the court clerk in another county. There is enough time to deliver it, but no time to spare. The lawyer directs the clerk: *368“Don’t let anything get in your way. Make sure it’s there on time.” The clerk deliberately runs a slow moving car off the road, killing the driver.
• A belligerent customer several times has engaged in sexually harassing behavior towards a waitress at a cafe. The waitress finally complains to the cafe owner, who tells her: ‘You don’t have to take that kind of abuse. Refuse to serve him and make him leave.” The customer repeats the harassment and then refuses to leave when the waitress tells him to. The waitress pulls out a gun from behind the counter and kills him .
Those are, to be sure, extreme and even seemingly fanciful examples. But as the facts of this case demonstrate, as unlikely as those hypotheticals might be, they could happen. If they were to happen, the tortious conduct would be connected to work activity and that would be enough to create liability for the employer, as I understand the dissent’s test. But in neither instance would I hold that the conduct meets the third prong of Chesterman. The majority’s refinement of that prong of Chesterman better serves the agency principles at work. See G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 60, 757 P2d 1347 (1988) (adopting Restatement (Second) of Agency § 245 (1957)1).
Section 245 of the Restatement provides:
“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 unexpected in view of the duties of the servant.” (Emphasis added.)