dissenting.
I cannot concur in Division 1, wherein the majority affirms the trial court’s denial of appellant’s motion for summary judgment on the issue of its liability for the alleged negligent hiring or retention of Mrs. Clark. After reviewing the record, I am convinced that the instant case is controlled by our decision in Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987). Accordingly, I must respectfully dissent.
“Where a servant departs from the prosecution of his business and commits a tort while acting without the scope of his authority, the person employing him may still be liable if he failed to exercise due care in the selection of his servant.” Renfroe v. Fouche, 26 Ga. App. 340 (3) (106 SE 303) (1921). However, “[a]n examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor’s working hours or the employee was action under color of employment. [Cits.]” Lear Siegler, Inc. v. Stegall, supra at 28. The evidence of record in this case shows that Mrs. Clark was employed to work in the leasing office of appellant’s apartment complex from the hours of 9 a.m. to 5:30 p.m. It is undisputed, however, that the sexual conduct attributed to Mrs. Clark and her husband did not occur during those scheduled office hours. See Lear Siegler, Inc. v. Stegall, supra. Compare C. K. Security Systems v. Hartford Accident &c. Co., 137 Ga. App. 159 (223 SE2d 453) (1976). It is also undisputed that no sexual misconduct ever occurred in the leasing office itself. See Lear Siegler v. Stegall, supra. Compare Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701, 702 (2) (344 SE2d 512) (1986).
The majority presumably finds that the conduct occurred during Mrs. Clark’s “working hours” or “under color” of her employment merely because she was on 24-hour call as the resident manager. Under this theory, however, the potential direct liability of employers would rest simply upon their hiring or retention of an employee to be on 24-hour call without regard to whether the employee had committed a tort while ostensibly acting in the capacity of a 24-hour on-call employee. Employers would be exposed to potential direct liability for any and all torts which were committed by their 24-hour on-call employee, even if the commission of those torts had no connection whatsoever with the underlying employment and were entirely personal to the employee himself.
That the tort of negligent hiring or retention of an employee does *260not extend so far as the majority finds was implicitly but unquestionably decided in Lear Siegler u. Stegall, supra. There, the employer had provided the employee with a car. While driving the car to work, the employee collided with another vehicle. This court held: “[B]ut for the fact that he was driving an automobile provided by [his employer], [the employee’s] posture at the time of the collision was no different from any other employee driving to work. We decline to extend the parameters of the cause of action for negligent hiring so as to require every business whose employees drive to work to investigate those employees’ driving records before hiring, or expose themselves to liability.” Lear Siegler v. Stegall, supra at 28-29. Likewise in this case, but for the fact that Mrs. Clark was the resident manager of appellant’s apartment complex, her status at the time the alleged tortious acts occurred was no different from any other resident of the complex. Mrs. Clark did not use her employment status to gain entry to appellees’ apartments to perpetrate any tortious acts. Compare Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665 (1) (307 SE2d 129) (1983). Mrs. Clark did not use her employment status to gain appellees’ trust and confidence so as thereby to induce them into participating in the alleged acts. Compare Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 879 (3) (298 SE2d 600) (1982). By hiring and retaining Mrs. Clark as the resident manager, appellant exposed appellees to no more potential for being harmed than had appellant accepted and retained Mrs. Clark as a tenant. There is simply no connection between Mrs. Clark’s employment and the tortious acts she and her husband allegedly committed against appellees.
If appellees have any claim against appellant, it is not in appellant’s capacity as the employer of Mrs. Clark, but in appellant’s capacity as the owner of the apartment complex who failed to exercise ordinary care to protect them from the misconduct of other tenants. See generally Razdan v. Parzen, 157 Ga. App. 848 (278 SE2d 687) (1981); Veterans Organization of Fort Oglethorpe v. Potter, 111 Ga. App. 201 (141 SE2d 230) (1965); Georgia Bowling Enterprises v. Robbins, 103 Ga. App. 286 (119 SE2d 52) (1961). I express no opinion, however, as to whether the respondeat superior counts of appellees’ complaints state a cause of action against appellant in its capacity as the owner of the apartment complex or, if so, whether summary judgment was or was not properly granted or denied as to such claims. Appellees have filed no cross-appeals from the grant of appellant’s motions for summary judgment as to its liability under the theory of respondeat superior and that issue is not before us. As to the issue that is before us, however, I believe that the trial court erroneously denied appellant’s motion for summary judgment as to its direct liability for the alleged negligent hiring or retention of Mrs. Clark as its employee. Accordingly, I respectfully dissent.
*261Decided October 28, 1988 — Rehearings denied November 15, 1988 R. Chris Irwin & Associates, R. Chris Irwin, Kathleen M. Pacious, for appellant. Calabro, Vogel & Jennette, Michael M. Calabro, James R. Vogel, Larry F. Jennette, Jr., Long, Weinberg, Ansley & Wheeler, Marvin A. Devlin, for appellees.I am authorized to state that Judge Sognier joins in this dissent.