dissenting.
If, as a matter of law, Piedmont Hospital cannot be vicariously liable for Patterson’s assault, then no employer can ever be liable for any sexual misconduct of an employee, no matter how closely connected such conduct may be with the employee’s duties. Thus, the majority effectively establishes an absolute rule that the doctrine of respondeat superior does not apply to cases involving sexual assault. Today’s ruling contradicts well-settled precedent which applies the doctrine to willful torts committed during momentary, slight deviations from the employment for personal reasons such as anger or malice. Frazier v. Southern R. Co., 200 Ga. 590, 594 (2) (37 SE2d 774) (1946). In an excellent opinion below, without dissent, Judge Phipps explained the ruling of the Court of Appeals as follows:
Here, the actions attributed to Patterson were not so far removed from his accepted duties to preclude liability for his employer. [Cit.] Patterson was performing his job when he initially touched Palladino’s genitals. Whether any continued, inappropriate touching was “entirely disconnected” from Piedmont’s business is a question for the jury. [Cits.] ... A jury must determine if Patterson deviated from his accepted duties so slightly that it would not affect Piedmont’s liability for his actions. [Cit.]
Palladino v. Piedmont Hosp., 254 Ga. App. 102, 104-105 (1) (561 SE2d 235) (2002). Because this analysis is eminently correct, I dissent to the reversal of the judgment of the Court of Appeals.
Contrary to the majority’s erroneous quotation of OCGA § 51-2-2, “ [i] t is not essential to the liability of a master for the wilful and intentional tort of a servant that the servant shall have acted at the command of the master or with the master’s consent. [Cit.]” Brown v. Union Bus Co., 61 Ga. App. 496, 499 (6 SE2d 388) (1939). The common law principle of respondeat superior “is codified in OCGA § 51-2-2: ‘Every person shall be liable for torts committed by his . . . servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.’ [Cit.]” (Emphasis supplied.) Chorey, Taylor & Feil v. Clark, 273 Ga. 143, 144 (539 SE2d 139) (2000).
The expressions, “in the scope of his business,” or “in the *618scope of his employment,” or similar words, have sometimes been given too narrow a meaning. A master rarely commands a servant to be negligent, or employs him with the expectation that he will commit a negligent or wilful tort; but if the act is done in the prosecution of the master’s business, that is, if the servant is at the time engaged in serving the master, the latter will be liable. [Cit.] But for a tort committed by the servant entirely disconnected from the service or business of the master, the latter is not responsible under the doctrine of respondeat superior, although it may occur during the general term of the servant’s employment.
Fielder v. Davison, 139 Ga. 509, 511-512 (3) (77 SE 618) (1913). See also IBM v. Bozardt, 156 Ga. App. 794, 797 (275 SE2d 376) (1980); Andrews v. Norvell, 65 Ga. App. 241, 243-244 (15 SE2d 808) (1941). Even though “ ‘the employee may have violated his instructions or exceeded in some respects the boundaries of his authorized acts, the master is still bound where the disobedience is not such as to take him out of the scope of his employment.’ [Cit.]” (Emphasis supplied.) Hagin v. Powers, 140 Ga. App. 300, 302 (1) (231 SE2d 780) (1976).
Evidence before the trial court demonstrated that Patterson “was at his employer’s place of business and that he was generally engaged in doing the type of work for which he was hired.” Miller v. Honea, 163 Ga. App. 421, 422 (294 SE2d 629) (1982). Furthermore, Patterson’s initiation of the alleged attack was closely related to the manner and method in which he performed, or failed to perform, his duties. See Miller v. Honea, supra. In fulfilling his duties, Patterson was authorized to touch Palladino’s genitals in order to adjust their position as necessary. Appellees presented evidence which would authorize a jury to find an uninterrupted escalation of contact between the patient “and an employee performing one of the duties for which he [was] employed. . . . [Cits.]” Reynolds v. L & L Mgmt., 228 Ga. App. 611, 613 (1) (492 SE2d 347) (1997).
“ ‘The theory that one may be a servant one minute, and the very next minute step aside and act in his individual capacity, and then the next minute step back into his capacity as a servant is too refined a distinction. Since to exonerate the master from liability it is essential that the deviation should be for purposes entirely personal to the servant, where the servant, notwithstanding the deviation, is engaged in the master’s business within the scope of his employment, it is immaterial that he join with this some private purposes of his own.’ [Cit.]” [Cit.]
*619McCranie v. Langdale Ford Co., 176 Ga. App. 281, 283 (335 SE2d 667) (1985). See also Frazier v. Southern R. Co., supra at 594 (2); Andrews v. Norvell, supra at 245. More specifically, the theory that a servant may be touching another , person’s genitals in fulfilling his employment duties one minute, and the very next minute seek to arouse or satisfy his personal sexual desires by touching the genitals in an unauthorized manner and in that act not be a servant, is surely too refined a distinction. See Frazier v. Southern R. Co., supra; McCranie v. Langdale Ford Co., supra; Andrews v. Norvell, supra.
Review of the record and applicable case law compels the conclusion that a jury might properly find that Patterson’s alleged assault was so closely connected with his checking and cleaning Palladino’s groin area that it might fairly be regarded as within the prosecution and scope of employment. Jump v. Anderson, 58 Ga. App. 126, 129 (197 SE 644) (1938) (where the employee, while driving a truck on his employer’s business, playfully turned the truck towards the plaintiff, and then did not turn back soon enough, so that a portion of the truck struck the plaintiff). The alleged inappropriate touching of genitals was not, as a matter of law, entirely disconnected, or a total departure, from that touching which was a permissible part of Patterson’s duties to check and clean the area, and which he was accomplishing at the time of the alleged tortious act. Andrews v. Norvell, supra at 245 (where the employee of. a saloon, while performing his duty to assist and direct customers in regard to seating, played a practical joke by having a customer sit where he had placed a substance which would burn a person’s flesh). In its analysis of Jump and Andrews in footnote 18, the majority entirely omits the fact that the employees in those cases engaged in pranks for their own personal purposes at a time when they had just been serving their employers and even appeared to continue so serving.
The Court of Appeals correctly distinguished several of its previous opinions. Palladino v. Piedmont Hosp., supra at 105 (1). In two cases, an employee accused of sexual misconduct was clearly not authorized to make contact with another person’s sex organs. Alpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 752 (2) (472 SE2d 532) (1996); Doe v. Village of St. Joseph, 202 Ga. App. 614, 616 (1) (415 SE2d 56) (1992). Another decision involved a physician’s sexual assault, but the opinion does not contain any indication whatsoever that the doctor was authorized to make contact with the plaintiff’s sex organs as part of the treatment. Coley v. Evans Memorial Hosp., 192 Ga. App. 423 (385 SE2d 100) (1989). These three cases do not furnish any basis for a per se rule that a master is never liable for the sexual misconduct of his servant, just as there is no reason to exclude vicarious liability for willful torts, committed out of anger or malice. Frazier v. Southern R. Co., supra at *620594 (2). Indeed, there is a national trend away from any such per se rule. Note, 76 Minn. L. Rev. 1513, 1514 (1992).
Decided April 29, 2003 Reconsideration denied June 2, 2003. Hall, Booth, Smith & Slover, Deborah S. Moses, for appellant. Zimmerman & Associates, Barry L. Zimmerman, Keith F. Brandon, Downey & Cleveland, William C. Anderson, for appellees.As the majority itself indicates, Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119, 120 (1) (421 SE2d 284) (1992), stands only for the proposition that vicarious liability cannot be based only on the fact that an employee was authorized to be present in a room with the plaintiff. In another case distinguished by the Court of Appeals and heavily relied on by the majority in this Court, where an employee gave an unauthorized injection of potassium chloride, there was no indication that she was authorized to give such injections to the plaintiff or to anyone else. Lucas v. Hosp. Auth. of Dougherty County, 193 Ga. App. 595 (1) (388 SE2d 871) (1989). “Here, Patterson was authorized to and even required to touch Palladino’s genitals to perform his job. While performing the authorized task, he allegedly went further and sexually assaulted Palladino. [Cit.]” Palladino v. Piedmont Hosp., supra at 105 (1).
Accordingly, there “was at least a jury question as to whether or not there was a deviation and, if so, whether the deviation was so slight as to not affect the master’s responsibility for the servant’s act. [Cit.]” Reynolds v. L & L Mgmt., supra at 613 (1). See also Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704-705 (373 SE2d 797) (1988). The question of whether “ ‘the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.’ [Cit.]” Bacon v. News-Press & Gazette Co., supra at 704. In my opinion, the Court of Appeals correctly reversed the trial court’s grant of summary judgment in favor of Piedmont. Therefore, we either should affirm the judgment of the Court of Appeals or dismiss the writ of certiorari as improvidently granted.
I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent.