(dissenting).
I acknowledge that our decision in Lange v. National Biscuit Company, 297 Minn. 399, 211 N.W.2d 783 (1973), substantially diminishes the motivation test for determining whether an intentional tort is committed within the scope of the tortfeasor’s employment, although our later decision in Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11 (Minn.1979), indicates it was not wholly discarded. Whether or not JIG II 252 is an accurate statement of our law, I dissent because Dr. E. Phillip Nuernberger’s eon-*313duet was clearly outside the scope of his employment as a matter of law, and thus any error in instructing the jury was without prejudice. The test enunciated in Lange does not compel, and policy considerations urge against, the extension of vicarious liability to the employer in the cases now before us.
The motivation test was challenged in Lange because it imposed liability on an employer according to an arbitrary determination of an employee’s state of mind at the precise moment the tort occurs. 297 Minn, at 403, 211 N.W.2d at 785. The Lange test, as applied to an argument that escalates into an assault, shifts the focus backward in time to the precipitating cause of the initial dispute. 297 Minn, at 403-04, 211 N.W.2d at 785. The argument and assault are treated as an indistinguishable event for purposes of vicarious liability.
Thus, in Lange, we observed that the initial dispute arose out of the employee’s employment-related efforts to secure shelf space for his product. Since the ensuing assault took its “color and quality from the earlier act” it was held within the scope of employment as a matter of law. 297 Minn, at 404, 211 N.W.2d at 786 (quoting Gulf, C. & S.F. Ry. Co. v. Cobb, 45 S.W.2d 323, 326 (Tex.Civ.App.1931)). In the cases before us, the. sexual acts of Dr. Nuernberger are not themselves within the scope of his duties as a therapist and cannot under any view of the facts be traced to precipitating acts from which they can draw an employment-related “color and quality.”
The majority notes that the sexual acts were preceded by normal massages. There is no evidence, however, that the therapeutic massages administered by Dr. Nuernber-ger caused or were the source of the sexual contact. These cases should not turn on the fortuitous fact that massages were given in the course of treatment. I would not view these cases differently if the unethical sexual conduct of the therapist was preceded solely by counseling without physical contact.
The only case cited by the majority for the proposition that sexual acts may be found to be within the scope of employment does not sustain the decision to remand. In Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976), a violent sexual assault arose out of an argument between the plaintiff and a deliveryman over the delivery of merchandise in the course of the employer’s business. The court limited its holding by noting that if “the [sexual] assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability [on the employer].” Id. at 655. Similarly, under the Lange rule, the employer should not be liable when the source of Dr. Nuernberger’s tortious acts lay not in his duties as an employee but in his aberrant desire for his patients.
Having concluded that the result reached by the majority is contrary to precedent, I object to the apparently inadvertent expansion of the vicarious liability doctrine. Commentators have struggled without success to arrive at a single, self-sufficient reason for holding an employer vicariously liable,1 so it is necessary to measure the majority’s holding against several commonly advanced rationales.
Under one rationale, vicarious liability is imposed on an employer because of the “control” or right of “control” by the employer over the physical conduct of his employee. This consideration justifies vicarious liability “only if control is interpreted as the ability of the principal to monitor the precautionary behavior of the agent.” 2 Vicarious liability, when triggered by activities such as those surrounding the tort in Lange, creates incentives for an employer to monitor an employee’s behavior and perhaps adjust the standards by which job *314performance is judged.3 The defendant clinic, however, is unable effectively to monitor a patient-therapist relationship without breaching the confidentiality of the relationship.
A second justification argues that since the employer reaps a benefit when the employee acts properly, the employer should share the cost when he acts improperly. If the salesman in Lange had succeeded through aggressive behavior in swaying the store manager, the immediate beneficiary would have been his employer. The benefit theory justified vicarious liability in that case. The logical limit to vicarious liability under the benefit theory must be at those cases involving activities that could never result in a benefit to the employer. Dr. Nuernberger’s conduct falls outside of this rationale.
Perhaps the predominant modern justification for vicarious liability is a conscious rule of public policy forcing businesses to treat liability for the acts of employees as a cost of doing business, which cost is then spread to the community at large. In Lange we called this the “entrepreneur theory.” 297 Minn, at 403, 211 N.W.2d at 785. This justification appeals to an instinctive sense of justice, especially in regard to those negligent torts that will occur even with reasonable precautions. But there may be a social cost to the spreading of risks. Where the employee alone is in a position to monitor his behavior, vicarious liability “tends to increase the number of torts, perhaps to the detriment of efficiency, by diluting the [employee’s] incentives for precautionary behavior.”4
For the foregoing reasons, I disagree that these facts warrant a broader “scope of employment” rule. Nor should we adopt at this time a special rule by which professional associations are vicariously liable for the actions of their members or employees whenever the time and place standards are met. The far-reaching ramifications of such a rule have received no consideration by the parties or the court below. The cases were tried solely on the theory of a simple employer-employee relationship, and both plaintiffs argued before this court under the Lange rule.
. See, e.g., W. Prosser, The Law of Torts 459 (4th ed. 1971); Brill, The Liability of an Employer for the Wilful Torts of His Servants, 45 Chi.-Kent L.Rev. 1, 2-3 (1968).
. Note, An Efficiency Analysis of Vicarious Liability Under the Law of Agency, 91 Yale L.J. 168, 191 (1981).
. The control theory was mentioned as a “secondary consideration” in Lange, 297 Minn, at 403, 211 N.W.2d at 785.
. Note, supra note 2, at 197. The dilution of incentives is evident in one of the present consolidated cases, where plaintiff Williams proceeded against employer without joining Dr. Nuemberger as defendant.