¶ 59. dissenting. I do not quarrel with the Court’s adoption of § 219(2)(d) of the Restatement (Second) of Agency as an exception to our scope-of-employment rule for purposes of determining vicarious liability. I submit, however, that in its broad application of the last clause of that section to the facts of this case, specifically a sexual assault committed by a law enforcement officer while acting outside the scope of employment, the majority has created a threat of vicarious liability that knows no borders. While the majority limits its holding to sexual assaults committed by “on-duty law enforcement officers,” ante, at ¶ 48, the standard that it articulates applies to a broad range of employees whose duties grant them unique access to and authority over others, such as teachers, physicians, nurses, therapists, probation officers, and correctional officers, to name but a few. As the trial court here aptly observed, the Court’s interpretation could virtually “eviscerated the general scope of employment rule.” Whether today’s holding stands as a legal aberration, a special departure from the general principles of respondeat superior created exclusively for law enforcement agencies, or the first in a new line of *505cases imposing vicarious liability on public and private employers for the sexual misconduct of their employees, only time will tell. In either case, irreparable and unwarranted damage will have been done, not only to the law enforcement agencies unfairly singled out for disparate treatment by today’s decision, but to every public and private employer compelled to defend itself against the inevitable spate of lawsuits seeking to extend today’s ruling. Therefore, I respectfully dissent.
¶ 60. Like the finding of a duty of care in negligence law, the imposition of vicarious liability under agency principles flows not from the rote application of rules, but from a considered policy judgment that it is fair and reasonable to hold an employer liable for the harmful actions of its employee. As Justice Souter, writing for the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), cogently observed: “In the instances in which there is a genuine question about the employer’s responsibility for harmful conduct he did not in fact authorize, a holding that the conduct falls within the scope of employment ultimately expresses a conclusion not of fact but of law.... [T]he ‘highly indefinite, phrase’ [vicarious liability] is ‘devoid of meaning in itself and is ‘obviously no more than a bare formula to cover the unordered and unauthorized acts of the servant for which it is found to be expedient to charge the master with liability, as well as to exclude other acts for which it is not.’” Id. at 796 (quoting W. Keaton et al., Prosser and Keaton on Law of Torts § 502 (5th ed. 1984); see also Yamaguchi v. Harnsmut, 130 Cal. Rptr. 2d 706, 713 (Ct. App. 2003) (“[Vicarious] liability is based not on the employer’s fault, but on public policies concerning who should bear the risk of harm created by the employer’s enterprise.”).
¶ 61. In its lengthy opinion, the majority here devotes considerable attention to the doctrinal debate over the meaning of an opaque phrase in a nonbinding provision of the restatement of the law of agency, yet barely addresses the broad policy ramifications of its decision holding a county sheriffs department vicariously liable for a sexual assault committed by a deputy sheriff acting entirely outside the normal scope of his employment duties. With respect, I submit that the majority’s analysis is inadequate to support so extraordinary a holding, and that such a significant expansion of public entity liability should be left to the branch best equipped to consider all of the underlying social and economic ramifications, the Legislature.
*506¶ 62. “Under the settled doctrine of respondeat superior, an employer or master is held vicariously liable for the tortious acts of an employee or servant committed during, or incidental to, the scope of employment.” Brueckner v. Norwich Univ., 169 Vt. 118, 122-23, 730 A.2d 1086, 1090 (1999). We have recognized that there are circumstances where even the intentional, unauthorized torts of an employee may be seen as “intending to advance the employer’s interests” and therefore fairly considered within the scope of employment. Sweet v. Roy, 173 Vt. 418, 431-32, 801 A.2d 694, 704 (2002). Outside the context of sexual harassment in the workplace, however — a special case more fully discussed below — this Court has never held that an employer may be vicariously liable for a sexual assault committed by an employee.7
¶ 63. Indeed, consistent with Vermont precedent, the majority accurately characterizes Deputy Forrest’s crime as “rooted in prurient self-interest” — rather than as intended to advance the interests of his employer — and therefore outside the proper scope of his ■ employment. Ante, at ¶ 18. Nevertheless, relying on an ambiguous rule cited by the United States Supreme Court in two workplace discrimination decisions, Faragher, 524 U.S. at 801, and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998), the majority concludes that Deputy Forrest’s employer — the Bennington County Sheriffs Department — may be held vicariously liable to the victim of his crime. The majority’s path to this startling conclusion is worth exploring.
¶ 64. The rule in question is set forth in § 219(2)(d) of the Restatement (Second) of Agency, which provides that a master is not subject to liability for the torts of a servant acting outside the scope of employment unless “the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.” Restatement (Second) of Agency § 219(2)(d) (1958). While acknowledging — as indeed it must — that there was no evidence the Department had conferred upon Deputy Forrest the “apparent authority” to engage in sexual assault, the majority nevertheless concludes that there was sufficient disputed evidence that he was *507“aided in accomplishing the tort by the agency relation” to survive summary judgment. In support of this conclusion, the majority relies on Faragher and Ellerth, companion cases in which the United States Supreme Court addressed the circumstances in which an employer may held liable, under Title VII of the Civil Rights Act of 1964, for sexual harassment perpetrated by a supervisor against an employee. Observing that numerous lower court decisions had drawn upon a variety of agency law principles enumerated in the Restatement (Second) of Agency to reach conflicting holdings, Justice Souter, writing for the Court in Faragher, cautioned that “[t]he proper analysis ... calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, see, e. g., §§ 219, 228, 229, but rather an inquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor’s employment, and the reasons for the opposite view.” 524 U.S. at 797 (emphasis added).
¶ 65. The Court concluded that the Congressional policies underlying Title VII — to prevent harassment in the workplace and encourage employers to adopt anti-harassment policies and establish reliable and accessible internal grievance mechanisms — would be well served by holding an employer vicariously liable when the misuse of supervisory authority, even if technically outside the scope of employment, creates a pervasively hostile work environment sufficient to alter the terms or conditions of a victim’s employment or results in a tangible negative employment decision.8 In so holding, the Court found “that the aided-by-agency-relation principle embodied in § 219(2)(d) of the Restatement provides an appropriate starting point for determining liability for the kind of harassment presented here.” Faragher, 524 U.S. at 802. The Court was careful to explain, however, that in relying on *508§ 219(2)(d) its intention was not “to make a pronouncement of agency-law in general,” but rather “to adapt agency concepts to the practical objectives of Title VII.” Id. at 802 n.3.8 9
¶ 66. Since the Faragher and EUerth decisions, courts and commentators have disputed the proper scope of the “aided-in-aecomplishing” clause of § 219(2)(d) outside the Title VII context. Some have severely criticized the Court for distorting the principles of vicarious liability embodied in §219(2)(d), arguing that the Court fundamentally misinterpreted the second clause as completely independent of the first, and that properly understood it applies only where the agent “purported to act or speak on behalf of the principal and he was aided in accomplishing the tort by the existence of the agency relationship.” P. Dailey, All in a Day’s Work: Employers’ Vicarious Liability for Sexual Harassment, 104 W. Va. L. Rev. 517, 550 (2002). According to the critics, the result of that misunderstanding, if applied elsewhere, would be to “vastly expand vicarious tort liability, and would make the scope of employment requirement largely superfluous.” Id. Others, relying on the history of §219(2)(d) and the debates among the drafters at the 1956 Proceedings of the American Law Institute, have argued that the aided-in-accomplishing clause “does not properly apply in intentional physical tort cases that lack elements of reliance or deceit.” Casenote, Costos v. Coconut Island Corp.: Creating a Vicarious Liability Catchall under the Aided-by-Agency-Relation Theory, 73 U. Colo. L. Rev. 1099, 1130 (2002); accord Mahar v. StoneWood Transp., 2003 ME 63, ¶ 21, 823 A.2d 540 (“section 219(2)(d) ... is limited in its application to cases within the apparent authority of the employee, or when the employee’s conduct involves misrepresentation or deceit”). An example of such reasoning can be found in Costos v. Coconut Island Corp., 137 F.3d 46, 49-50 (1st Cir. 1998), where the court held that a hotel may be vicariously liable for the rape of a hotel guest by the hotel manager because the manager had been entrusted with the room keys, knew in what room the victim was located, and had access to the hotel at night, and therefore was “aided in accomplishing the tort” by the agency relationship.
*509¶ 67. Weighing in on this doctrinal debate, the majority here rejects the arguments for a narrow construction of the second clause of § 219(2)(d) in favor of a broader reading that would impose vicarious liability on a law enforcement agency whenever the “plaintiff can show that an on-duty law enforcement officer was aided in accomplishing an intentional tort involving a sexual assault on the plaintiff by the existence of the employment relationship with the law enforcement agency.” Ante, at ¶ 48. Such a reading is consistent, the majority argues, with Ellerth and Faragher, where the employers purportedly created the special conditions of “access” and “power” that enabled their employees to engage in sexual misconduct. Ante, at ¶¶ 29, 30.
¶ 68. With respect, I submit that the majority’s analysis and conclusion are fundamentally flawed! First, as noted, the high court never intended for its decisions in Faragher and Ellerth to have any influence on the development of common-law agency principles or the application of §219(2)(d) outside the specific context of Title VII. Second, the drafters’ intentions with respect to § 219(2)(d), whether expansive or narrow, are largely beside the point when it comes to deciding whether to hold a law enforcement agency vicariously liable for a sexual assault perpetrated by one of its officers. That issue — as noted — turns on policy considerations of a broad nature, considerations that the majority barely acknowledges and insufficiently analyzes.
¶ 69. The “policy” most pertinent to the issue, according to the majority, is the “extraordinary power that a law enforcement officer has over a citizen.” Ante, at ¶ 34. Others mentioned are the “unique access” that a police officer’s position affords for the commission of sexual assaults, particularly in the current “era of community policing,” ante, at ¶¶ 37, 38; the “vulnerability]” of the victim whose safety the officer is charged to protect, ante, at ¶ 36; the assumption that “imposing liability on the employer may prevent [the] recurrence of tortious conduct by creating an incentive for vigilance by those in a position to prevent it”; ante, at ¶ 39; and finally the idea that “the costs of police misconduct should be borne by the community because the community derives substantial benefits from the lawful exercise of police power.” Id.
¶ 70. None of these asserted policy considerations withstands scrutiny. While it is certainly enlightening to learn that we live in a new “era of community policing” (like many so-called reforms, the concept of “community policing,” viewed in historical context, looks very much *510like the old-fashioned policeman “on the beat” that existed for many years), the majority fails to explain how “community policing” forms the policy basis for holding the Sheriffs Department vicariously liable for the sexual assault committed by Deputy Forrest. The majority notes that Deputy Forrest’s ostensible justification for being in the store may have been related to his police function, and that the assault may therefore have been facilitated by his employment and aided by his “power” relationship with the victim. But this does not answer the question of why it is fair to hold a law enforcement agency liable for an officer’s outrageous abuse of that power. When there has been no showing that the police department itself was negligent in hiring, training, or supervising its officer, why is it fair or reasonable to burden the public with liability for a sexual assault perpetrated by a rogue employee solely for his own twisted personal gratification?
¶ 71. It is certainly true that police officers occupy a position of trust and authority by virtue of their employment, and that this authority informed the decision on which the majority principally relies, Mary M. v. City of Los Angeles, 814 P.2d 1341, 1349 (Cal. 1991). What the majority does not explain, however, is how — if at all — this distinguishes police officers from many other employees, both public and private, who occupy parallel positions of authority. An employee’s “access” or opportunity to commit an intentional tort may be facilitated by a “trust” relationship in many different contexts (e.g., the postal service employee or UPS deliverer admitted to a home by virtue of the trust engendered by the position, the tow-truck operator called to help an unsuspecting motorist stranded on the highway, the psychiatrist entrusted with a child in the privacy of his or her office), and the range of employees vested with some form of “power” — in many cases extraordinary power — over others by virtue of their employment is considerable. Apart from labeling the police officer’s authority as “unique,” the majority fails to explain what qualitatively distinguishes a law enforcement officer’s power over a “vulnerable” detainee from a correctional officer’s power over a prisoner, a teacher’s power over a student, a psychiatric nurse’s power over a mentally ill patient, a residential counselor’s power over the teen-age residents of a group home, or a probation officer’s power over a probationer, to name only a few analogous relationships.
¶ 72. Indeed, building on the holding in Mary M., some courts have advocated for the extension of vicarious liability to other professions based precisely on such unexamined considerations. See, e.g., Harrington v. Louisiana State Bd. of Elementary & Secondary Educ., 714 *511So. 2d 845, 851-52 (La. Ct. App.) (rape of student by community college instructor may be imputed to state employer based on “authority given to [the instructor]”), cert. denied, 728 So. 2d 1287, 1288 (La. 1998). Other courts, however, have rejected the facile argument for vicarious liability based simply on the employee’s authority. In Niece v. Elmview Group Home, 929 P.2d 420, 430 (Wash. 1997), for example, the court declined to hold a residential facility vicariously liable for an employee’s rape of a resident absent “sound policy reason[s] to shift the loss created by the employee’s intentional wrong from one innocent party to another.” Even more significantly, several justices of the California Supreme Court have concluded that Mary M. was wrongly decided and should be overruled. See Farmers Ins. Group v. County of Santa Clara, 906 P.2d 440, 459 (Cal. 1995) (Baxter, J., concurring) (writing separately to express his “disagreement with Mary M.”); id. at 460-61 (George, J., joined by Lucas, C.J., concurring) (characterizing Mary M. as “an aberration that should be overruled”); see also Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 907 P.2d 358, 367 (Cal. 1995) (George, J., joined by Lucas, C.J., concurring) (calling for Mary M. to be overruled). While concurring in the court’s unwillingness to extend the Mary M. rule to other professions, these justices have candidly acknowledged the absence of any principled distinction between the scope of authority exercised by police officers and that of other professions such as teachers, and have called for the end to the “special rules, purportedly applicable only to on-duty police officers.” Farmers Ins., 906 P.2d at 461 (George, J. & Lucas, C.J., concurring) (“Police officers should be governed by the same standard employed in determining whether the misconduct of other employees falls within the scope of employment. Police officers occupy a position of trust and authority in our society, but the same is true of other public employees, such as teachers.”).
¶ 73. The majority also suggests that the imposition of vicarious liability for intentional sexual misconduct by police officers serves the public good by providing an “incentive” for better training and supervision. The injury-prevention rationale might work in the context of workplace sexual harassment, but I fail to understand how better training will deter an intentional sexual assault committed solely out of personal motivations. Indeed, the majority does not cite a single example or empirical authority suggesting what the Sheriffs Department might do differently to prevent future assaults. See Note, Mary M. v. City of Los Angeles: Should a City Be Held Liable Under *512Respondeat Superior for a Rape by a Police Officer?, 28 U.S.F. L. Rev. 419, 450-53 (1994) (noting that employers’ practical ability to prevent sexual assaults of this nature is “slight”). Nor does the majority even mention the greater likelihood that vicarious liability in these circumstances may have negative public consequences, inducing departments to curtail the kinds of beneficial activities — such as “community policing” — that place officers in isolated situations with members of the public, or encouraging them to take defensive measures such as two-person police patrols, however costly to the public. See id. at 451 (sexual assaults such as that in Mary M. “realistically cannot be prevented without causing negative consequences for law enforcement”).
¶ 74. Equally misguided is the majority’s reliance on the notion that vicarious liability serves the interest of spreading the “costs of police misconduct” among those who benefit “from the lawful exercise of police power.” Ante, at ¶ 39. Risk spreading assumes that the employer can reasonably anticipate the loss and pass the cost of injuries to the beneficiaries of the enterprise in the form of higher rates or prices. See G. Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L. J. 499, 543-44 (1961). Public agencies such as police departments or school districts, however, cannot raise their prices, and, short of increasing already overwhelming property tax burdens, their only option may be to cut funding elsewhere. See Note, supra, 28 U.S.F. L. Rev. at 456 (“Imposition of vicarious liability could have the effect of taking away funding to pay judgments that would otherwise be allocated to pay for police services.”); see also TBH v. Meyer, 168 Vt. 149, 154, 716 A.2d 31, 35 (1998) (if insurer were required to cover costs of insured’s sexual misconduct, causing other policy holders to bear expense of passed along costs, “[t]he average person... would cringe at the very suggestion”) (citation omitted).
¶ 75. It has also been suggested that vicarious liability is necessary in these kinds of situations to ensure the compensation of tort victims. Mary M., 814 P.2d at 1348-49. But is it really necessary or fair to impose liability without fault when the opportunity exists to hold employers directly liable if it can be proven that they were negligent in hiring, training, or supervising the tortfeasor? See Brueckner, 169 Vt. at 126, 730 A.2d at 1093 (principal may be held directly liable for damages resulting from negligent supervision of employee); TBH, 168 Vt. at 154, 716 A.2d at 35 (although denying coverage for sexual misconduct “will deny [victim] a potential source of compensation ... [e]nsuring compensation of the victim ... is outweighed by precisely *513fixing both moral and economic liability”). While theoretical arguments could be made on both sides of the issue, the record in this case is devoid of any actual evidence to inform the Court’s decision.
¶ 76. Finally, in addition to the foregoing, the majority implies that support for the imposition of vicarious liability in these circumstances may be found in cases such as Red Elk v. United States, 62 F.3d 1102, 1107 (8th Cir. 1995), which held that a sexual assault by an on-duty police officer may be sufficiently “foreseeable” to fall within the scope of employment and therefore may be attributable to the employer. The proposition that it is foreseeable that a police officer may sexually assault an innocent victim merely because the officer has the power or the opportunity to do so has been soundly rejected by other courts. See, e.g., Bates v. United States, 701 F.2d 737, 741-42 (8th Cir. 1983); Gambling v. Cornish, 426 F. Supp. 1153, 1154-55 (N.D. Ill. 1977); Boykin v. Dist. of Columbia, 484 A.2d 560, 562 (D.C. 1984); Bates v. Doria, 502 N.E.2d 454, 457-58 (Ill. App. Ct. 1986). As Justice George aptly observed in Farmers, “it is one thing to say that a public entity must expect that some police officers will abuse their authority by, for example, using excessive force in effectuating an arrest or detention and quite another to conclude that a public entity must expect that some officers will rape women they have detained.” 906 P.2d at 461 (George, J., concurring).10
¶ 77. While purporting to rely on the “unique” power exercised by on-duty police officers, the majority opinion fails to explain why this provides a reasoned basis for departing from the usual rules of respondeat superior for law enforcement agencies, and more disturbingly fails to set forth any basis to distinguish a police officer’s “power” from that of other employees in analogous positions of authority over vulnerable populations. It is no excuse to assert — as the Court does here — that the decision is intended to be “narrow” and not ‘Venture beyond what is necessary to decide the case,” ante, at ¶ 47, when the potential costs of doctrinal inexactitude are so great.
*514¶ 78. Even in the relatively “narrow” employment- context of law enforcement agencies the majority provides no clear basis to limit the imposition of vicarious liability. The majority rejects the notion of imposing “strict liability” on the Department for the criminal acts of its employees, see ante, at ¶ 13, yet provides no reasoned basis to distinguish this case from any other involving police misconduct. The police officer’s “access” to the victim in this case was no different from any other patron of the convenience store, and the idea that a police cruiser parked in front would “deter” others from entering the, store, ante, at ¶ 52, is pure speculation. Furthermore, nothing in the record suggests that the assault was particularly facilitated by Deputy Forrest’s “authority” as a law enforcement officer; any other assailant with a handgun and the physical power could have committed the same offense. Thus, while the majority purports to reject the notion that simply owning a badge, gun, and uniform are enough to create vicarious liability its holding suggests exactly the reverse.
¶ 79. Recently, in Smith v. Parrott, 2003 VT 64, ¶ 7, 175 Vt. 375, 833 A.2d 843, this Court was presented with a similar opportunity to broadly expand the potential tort liability of a profession, in that case physicians and other health care professionals, by departing from the traditional causation standard and adopting the so-called “loss of chance” doctrine. While acknowledging that the doctrine had received substantial support among legal commentators and had been accepted in a number of jurisdictions, we nevertheless cautioned that its adoption here raised “fundamental questions about its potential impact on not only the cost, but the very practice of medicine in Vermont; about its effect on ... other professions and the principles — if any — which might justify its application to medicine but not other fields.” Id. at ¶ 13. Confronted with these uncertainties, we concluded that the decision “ ‘involves significant and far-reaching policy concerns’ more properly left to the Legislature, where hearings may be held, data collected, and competing interests heard before a wise decision is reached.” Id. at ¶ 14 (quoting Crosby v. United States, 48 F. Supp. 2d 924, 931 (D. Alaska 1999)). I submit that prudence dictates a similarly cautious approach here, where the issues are even more complex, the ramifications for the public welfare and safety even greater, and the Court’s obvious lack of information for policy formulation that much more significant. See Niece, 929 P.2d at 430-31 (declining to impose vicarious liability on group home for employee’s rape of resident because “complex questions of public policy” as to how the cost of such liability would be borne and how it would affect residential care *515“dictates that we defer to the Legislature”). The better part of wisdom here is to defer to the Legislature, which is uniquely equipped to engage in the “fact-finding and problem-solving process” necessary to an informed and balanced decision on the question of whether a police department may be held vicariously liable for an intentional sexual assault committed by an officer. Hillerby v. Town of Colchester, 167 Vt. 270, 276, 706 A.2d 446, 449 (1997). I would, therefore, affirm the summary judgment of the trial court in favor of defendants.
¶ 80.1 am authorized to state that Chief Justice Amestoy joins this dissent.
Derivative or vicarious liability of an employer for the intentional misconduct of an employee is to be distinguished, of course, from an employer’s direct liability for the negligent hiring or supervision of an employee. Brueckner v. Norwich Univ., 169 Vt. 118, 126, 730 A.2d 1086, 1093 (1999). There was no allegation or evidence here, however, that the assault was the result of the Sheriff’s Department’s failure to adequately screen, train, or supervise Deputy Forrest.
In distinguishing the two types of discrimination, the Court explained that where the supervisory misconduct results in a tangible employment action, such as firing, failing to promote, or reassignment, it “requires an official act of the enterprise, a company act,” and thus “becomes for Title VII purposes the act of the employer.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998). For sexual harassment not involving a tangible employment decision, the Court found that imposing vicarious liability upon the employer would provide incentives to promote the policies of Title VII, but also recognized that the employer should be able to assert as an affirmative defense that it “had exercised reasonable care to avoid harassment and to eliminate it when it might occur, and that the complaining employee had failed to act with like reasonable care to take advantage of the employer’s safeguards____” Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998).
Even before the Supreme Court’s decisions in Faragher and EUerth, this Court in Allen v. Dep’t of Employment & Training, 159 Vt. 286, 618 A.2d 1317 (1992), reached a similar conclusion concerning an employer’s potential liability for sexual harassment in the workplace. See id. at 291, 618 A.2d at 1320 (relying on Title VII cases and § 219(2)(d) to suggest that knowledge of supervisor’s sexual harassment of employee could in some circumstances be imputed to employer).
In Red Elk v. United States, 62 F.3d 1102, 1104 (8th Cir. 1995), the thirteen year old victim was picked up by a tribal officer and raped in the officer’s cruiser. The court of appeals described “five more incidents of intercourse” with the victim in which “in some instances the victim voluntarily submitted” until she later “put an end to the relationship.” Id. at 1104. To describe the multiple sexual assaults of a thirteen-year-old girl by a grown man as a “relationship” and suggest that she ‘Voluntarily submitted” discredits the opinion’s overall analysis.