(concurring in part and dissenting in part).
I concur with the majority that the appellant’s failure to raise the issue of strict liability in its pleadings precludes our consideration on appeal, but I respectfully dissent from the majority’s conclusion that the evidence presented in this case creates a genuine issue of material fact such that North Homes, Inc., could be held vicariously liable for the conduct of David Kist. Thus, I would affirm the judgments of the district court and the court of appeals.
Two reasons lead me to depart from the judgment of the majority: (1) the affidavit of John Krueger, even if accepted as true, fails to create a genuine issue of material fact because the affidavit fails to provide a basis that would , permit a jury to find, by the greater weight of the evidence, that Kist’s conduct was foreseeable; and (2) North Homes should not be held liable for Kist’s actions because the assault did not occur within the scope of Kist’s employment and was unrelated to his job duties.
Summary judgment is appropriate if the pleadings, depositions, answers, admissions and affidavits show there are “no genuine issue[s] as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03; see also DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). On review, we determine “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).
A material fact is one that will affect the outcome or result of a case. See O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). A genuine issue of material fact “must be established by ‘substantial evidence.’ ” Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976). We have said that a factual dispute does not exist when:
The nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.
DLH, 566 N.W.2d at 71. To prevent summary judgment, “the nonmoving party must do more than rely on ‘unverified or conclusory allegations’ in the pleadings or postulate evidence which might be produced at trial.” W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn.1998) (quoting Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995)).
The majority reverses the lower courts by holding that Krueger’s affidavit raises a genuine issue of material fact for a jury to resolve regarding the foreseeabilty of Kist’s conduct. As a threshold matter, it should be noted there is no evidence in the record that even hints that North Homes failed to comply with regulations that require it to conduct a criminal background check on its employees and that prohibit it from placing an employee convicted of a sex crime in contact with residents. In fact, appellant did not appeal from the lower courts’ determination that all claims of negligence on the part of North Homes be summarily dismissed.
Further, while the majority concedes that the Krueger affidavit lacks any information specific to Kist or I.T.A.S.K.I.N. House, it relies upon North Homes’ failure to contradict the affidavit as grounds for reversing the district court and the court of appeals. The majority ignores the procedural posture of the case by placing a burden on North Homes. North Homes moved for summary judgment, and appellant submitted the Krueger affidavit in opposition to North Homes’ motion. Affidavits opposing summary judgment do not *915create genuine issues of material fact if they merely recite conclusions. See Peterson v. American Family Mut. Ins. Co., 280 Minn. 482, 487, 160 N.W.2d 541, 544-45 (1968). “The nonmoving party must present specific facts which give rise to a genuine issue of material fact for trial.” W.J.L., 573 N.W.2d at 680.
Krueger’s affidavit recites that sexual assaults by counselors are “infrequent” but also are a “well known hazard” and that it is “entirely foreseeable” that such assaults “could” happen. The affidavit also states that such assaults are a “recognized possibility” and there is “potential” for such abuse. Krueger also admits in his affidavit that it is not “possible to predict which individual counselor would engage in inappropriate conduct.” Krueger continues that an employer such as North Homes could not “reasonably anticipate” such assaults or who could commit such an act. It is on this skimpy expert testimony that the majority extends the doctrine of re-spondeat superior to the facts of this case despite Krueger’s failure to provide any factual basis for his conclusions. As the majority concedes, Krueger does not even mention I.T.A.S.K.I.N. House, Kist, Kist’s duties, or any statistical support for his terming sexual assaults a “well known hazard.” Kist’s affidavit is at best conclusory and at worst contradictory.
While our case law has failed to precisely define “foreseeability,” Black’s defines it as:
The ability to see or know in advance; e.g. the reasonable anticipation that harm or injury is a likely result from certain acts or omissions.
Black’s Law Dictionary, 649 (6th ed.1990). Krueger’s affidavit equates “foreseeability” with “possibility” and “potential.”1 The majority’s acceptance of Krueger’s affidavit does the same thing and extends re-spondeat superior beyond the limitations of our prior decisions. As the California courts have stated:
‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.
John R. v. Oakland Unified Sch. Dist., 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948, 964 (Cal.1989) (Kaufman, concurring and dissenting) (quoting Rodgers v. Kemper Constr. Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143, 148-49 (Ct.App.1975)).
There is nothing in the record to suggest that Kist’s conduct was anything but unusual or startling. Krueger’s affidavit summarily deems the conduct as a possibility. It lacks any indication of personal knowledge of the facts of this case as required by the rules. See Minn. R. Civ. P. 56.05. Krueger’s affidavit failed to report any other examples of such assaults, at I.T.A.S.K.I.N. House or elsewhere. As the California Supreme Court noted: sexual abuse may be “conceivable, but that is a far cry from foreseeability.” John. R., 256 Cal.Rptr. 766, 769 P.2d at 956.
Certainly the facts of Marston v. Minneapolis Clinic of Psychiatry and Neurology, 329 N.W.2d 306 (Minn.1982), do not support the majority’s decision. In Mar-ston, several experts appeared at trial, testifying that sexual relationships between doctor and patient — particularly where the doctor-patient relationship involved physical contact in the form of therapeutic massage — were a recognized hazard in psychiatry. See id. at 308. In Marston, we relied upon this trial testimony in conclud*916ing that foreseeability of such sexual relationships was an appropriate fact question for the.jury to resolve. See id. at 311. But the facts of this case are quite different. Marston was an appeal following a jury trial while here, on summary judgment, we are confronted with the conelu-sory affidavit of an expert that merely parrots the language of our decision in Marston. See id. at 307-09 (summarizing expert testimony that sexual relationship between psychiatrist and patient was a well known hazard). The Krueger affidavit, as a matter of law, is insufficient to raise a genuine issue of material fact. Furthermore, there was ample testimony in Marston to support the conclusion that the source of the attack was the psychiatrist’s duties and in particular the use of therapeutic massage. There is no evidence in the record to support the notion that Kist was in any way performing any legitimate duties at the time of his assault on appellant.
Because Kist’s conduct was not related to his job duties and because there is no evidence raising a genuine issue of material fact that Kist’s acts were foreseeable, I would affirm summary judgment in favor of North Homes.
The majority, citing Lange v. National Biscuit Co., 297 Minn. 399, 403, 211 N.W.2d 783, 785 (1973), also turns to the policy behind the doctrine of respondeat superior when it states that an employer’s liability “stems from public policy rather than from any fault of the employer.” This policy determination should have limits, but the majority’s interpretation of orn-ease law leaves almost no barrier in Minnesota to recovery by persons injured by the criminal acts of employees when, as is the case here, there is no evidence of negligence on the part of the employer. A review of our decisions compels the conclusion that Kist’s conduct, while reprehensible, was neither within the scope of his employment nor foreseeable.
The majority relies on our decision in P.L. v. Aubert, 545 N.W.2d 666 (Minn.1996), to support its conclusion that appellant has raised a factual question requiring trial. But in Aubert, where a teacher engaged in a consensual sexual relationship with a student, we rejected an argument similar to appellant’s and granted summary judgment in favor of the school district. 545 N.W.2d at 668. We stated that the sexual misconduct by the teacher “occurred within work-related limits of time and place.” Id. However, we also stated that the “sexual contact by the teacher toward the student could not be considered an ‘indivisible’ act directly related to her teaching duties,” so that liability of employer could not be imputed. Id. Here, the majority focuses on our language in Aubert discussing foreseeability, but Au-bert plainly requires that the intentional tort be related to the duties of the employee.
It is true that in Minnesota, unlike other jurisdictions, we have held that an employee does not have to be acting in furtherance of the employer’s business to fall within the scope of employment. See Marston, 329 N.W.2d at 311. Here, while it is undisputed that Kist’s assault on appellant took place during the work-related limits of time and place, Kist’s conduct was unrelated to his job duties. The record is devoid of evidence suggesting that Kist was in any way acting in accordance with his duties as a program counselor. While the majority contends that “the source of Kist’s attack lay in activity that was directly related to his legitimate counselor duties,” the record is clear that Kist’s criminal conduct was purely self-gratifying. Rather than providing a safe and secure place for appellant during her stay at the shelter, Kist engaged in conduct outside the scope of his job duties by (1) sexually assaulting appellant; (2) drinking during his shift; (3) providing alcohol to appellant; (4) providing cigarettes to appellant; (5) disabling a smoke alarm so appellant could smoke; (6) allowing appellant to make telephone calls despite a “no phone contact” order; and (7) falsifying *917the daily log record regarding the events of the night. This conduct by Kist was completely outside Kist’s duties - in fact in direct contravention of his duties - and only served his personal agenda. The majority states that Kist’s actions in talking to Fahrendorff prior to the assault “was connected with or related to seemingly legitimate employment activities.” The connection between job duties and the assault should be stronger than connected to “seemingly legitimate” duties before subjecting an employer to liability in absence of any negligence on the part of the employer.
Under today’s decision, which accepts the Krueger affidavit as raising a genuine issue of material fact, every employer in Minnesota whose employee commits an intentional or criminal act will be faced with a trial when a complaint alleges a claim sounding in respondeat superior. This approach fails to place limits or provide guidance regarding what is foreseeable conduct and stretches Minnesota law to accommodate an admittedly sympathetic plaintiff. Because Kist acted outside his job duties, and because appellant has not alleged specific material facts creating a question for a jury to resolve regarding the foreseeability of Kist’s acts, I would affirm the court of appeals’ decision affirming the district court’s grant of summary judgment in favor of North Homes.
. The best example ol foreseeable conduct among our cases is Lange v. National Biscuit Co., 297 Minn. 399, 211 N.W.2d 783 (1973). In Lange, a cookie salesman assaulted a grocer while placing his employer’s product on the shelf and the record indicated that the employer had received complaints about the salesman's aggressive behavior. 297 Minn. at 400, 211 N.W.2d at 784. Thus, in Lange the salesman's behavior was within the scope of his employment, related to his duties, and foreseeable. The facts of this case are quite dissimilar.