dissenting.
In Chesterman v. Barmon, 305 Or 439, 442, 753 P2d 404 (1988), the Supreme Court devised a three-part test to determine whether an employee is within the scope of employment. Under the Chesterman test, an employee acts within the scope of employment when: (1) the tortious act occurs within the time and space limits of the employment; (2) the employee was motivated, at least in part, to serve the interests of the employer; and (3) the “act [was] of a kind which the employee was hired to perform.” Id. at 442.
The majority agrees that the first two Chesterman factors are met here but concludes that plaintiffs proof failed *369as to the third. I dissent from the majority’s determination as to the third prong because, in my view, its analysis of the third prong is overly narrow and, in effect, usurps the province of the jury.
Plaintiff’s evidence establishes that defendant knew that Bray previously had called Davis a “son of a bitch” and threatened to “get even” in connection with a parking dispute. With full knowledge of that background, defendant nevertheless instructed Davis not to permit Bray to park in the garage. It was as Davis carried out defendant’s specific order not to permit Bray to park in the garage that Bray attacked him.
It is against this background that the majority asserts that the dispositive question is “whether Davis’s use of excessive force was within the realm of reasonably foreseeable actions resulting from McCracken’s directive.” In my view, the majority’s question is too narrowly drawn and does just what the majority criticizes our prior opinions of doing — it begs the question. Of course, defendant did not intend or reasonably foresee that Davis would kill Bray. However, as the majority points out, “it is a rare case indeed in which an employee’s job description explicitly encompasses intentional torts.”
In G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 60, 757 P2d 1347 (1988), the Supreme Court acknowledged that employers may be liable for the intentional torts of an employee and quoted with approval Restatement (Second) of Agency 537, section 245 (1957), which 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.)
In a similar vein, in Mains v. II Morrow, Inc., 128 Or App 625, 632, 877 P2d 88 (1994), we quoted the following from a Ninth Circuit case analyzing Oregon law:
“ ‘[T]he specific egregious act giving rise to an intentional tort claim will itself rarely be “of a kind which the employee *370was hired to perform”; the appropriate inquiry is whether the employee committed the tort while performing, or in connection with, his job responsibilities.’ Dias v. Sky Chefs, Inc., 919 F2d 1370, 1375 (9th Cir 1990), vacated on other grounds 501 US 1201, 111 S Ct 2791, 115 L Ed 2d 965 (1991) , affirmed on remand 948 F2d 532 (9th Cir 1991), cert denied [503] US [920], 112 S Ct 1294, 117 L Ed 2d 517 (1992) .”
Both G.L. and Mains make it abundantly clear that it is the unauthorized act’s connection or lack thereof to the employee’s job duties or responsibilities that determines whether “the act [was] of a kind which the employee was hired to perform.” This is true even when the test is phrased, as the majority does, in terms of “foreseeable consequence” because it is the act’s connection to the employee’s job responsibility or lack thereof that sets the boundaries of foreseeability.
Here, the confrontation between Davis and Bray arose out of Davis’s enforcement of defendant’s directive not to permit Bray to park in the garage. In the context of the evidence here, a confrontation with Bray over parking was within the realm of reasonably foreseeable actions that could result from defendant’s directive to Davis and, thus, had a connection to Davis’s employment responsibilities. The fact that Davis’s response to Bray’s attack was excessive does not destroy the act’s connection to Davis’s job duties. I would hold that a jury could, as it did here, find that Davis’s acts occurred within the scope of his employment.
I respectfully dissent.