with whom CLIFFORD, J., joins, concurring and dissenting.
[¶ 77] I concur that at this preliminary, motion to dismiss stage, we must remand for development of more facts before liability and First Amendment issues can be resolved. I do not concur that we must reach out, as the Court does, and change Maine law by effectively overruling Swanson and, for the first time in Maine legal history, recognizing the tort of negligent supervision, something we refused to do just two years ago. From these rulings, I respectfully dissent.
[¶ 78] With these rulings, the Court invites lawsuits against businesses, schools, camps, churches, and youth sports organizations for real or perceived improprieties by their members or employees, that occur outside of the course and scope of the organizations’ responsibilities. By adopting the tort of negligent supervision, the Court imposes on the Roman Catholic Church, and all other employers, a duty to not forgive, to not allow for redemption, and to give no second chances when flaws or improprieties are found in an employee’s conduct, even if that conduct occurs outside the regular course of the employer’s or organization’s business activities.17 We need not reach so far.
[¶ 79] Any Maine business or organization that invites minors to participate in its activities has a duty not to place minors who participate in those activities in a situation that presents a known risk of harm. Maine law is well settled that any *1233business, church, or other organization is responsible for misconduct of employees or agents that occurs in the course and scope of the organization’s business or activity and causes harm to others. DiCentes v. Michaud, 1998 ME 227, ¶ 11, 719 A.2d 509, 518. The common law of agency provides that an employer or principal is responsible for the acts of its employees or agents committed within the course and scope of employment. Mahar v. StoneWood Transport, 2003 ME 68, ¶¶ 13-17, 823 A.2d 540, 544-45; Bonk v. McPherson, 605 A.2d 74, 78 (Me.1992). In Mahar, we held that the Maine law of respondeat superior is consistent with the RESTATEMENT (SECOND) OF AGENCY § 228. 2003 ME 63, ¶ 13, 823 A.2d at 544. Section 228 states:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
RESTATEMENT (SECOND) OF AGENCY § 228 (1958).
[¶ 80] The standards stated in subsection (2) are essentially the same as the standards stated in subsection (1). Subsection (2) states what must be proven by a defendant to escape from a “within the scope of employment” determination, while subsection (1) states what must be proven by a plaintiff to bring an employee’s actions within the “scope of employment” definition and thus make an employer vicariously liable for an employee’s actions.
[¶ 81] Interpreting the allegations in the complaint most favorably to Fortin, as we must at this motion to dismiss stage, In re Wage Payment Litigation, 2000 ME 162, ¶ 3, 759 A.2d 217, 220, Fortin may be able to prove that Melville’s abuse occurred (1) while Melville was performing functions for the church; (2) at church facilities when parishioners could be present for religious services or counseling; (3) during or in preparation for or closing up of activities, such as the altar boy function, that served the church’s mission; and (4) with improprieties that were not unexpected due to the church’s notice of Melville’s prior improprieties.
[¶ 82] Fortin’s claims prior to his eighteenth birthday are preserved by operation of 14 M.R.S.A. § 752-0(1) (2003).18 The claims arising out of events alleged to have occurred prior to Fortin’s eighteenth birthday are based on allegations in the complaint that someone in the church hier*1234archy may have known of allegations of impropriety by Melville and not reacted sufficiently to them, and that Fortin then participated in common church activities where he was abused by Melville.
[¶ 83] Melville’s actions, as alleged, meet all the criteria addressed by subsection (1) of RESTATEMENT (SECOND) OF AGENCY § 228. Thus, Fortin’s complaint presents at least a prima facie case for respondeat superior liability. Accordingly, it would be the Diocese’s burden to prove the “escape” provisions of subsection (2) of section 228. The Diocese may be able to do that with the facts more developed, but the successful proof of the escape provisions cannot be inferred at this motion to dismiss stage of the proceedings, i
[¶ 84] The tort of negligent supervision does not apply to the common, regular activities of a business or organization. It only ápplies to employee actions outside the course and scope of their employment or agency, when it is alleged that the employer or principal may have had some notice of the employee’s or agent’s tendency toward impropriety. See RESTATEMENT (SECOND) OF TORTS § 317 (1965) (addressing the elements of a negligent supervision cause of action).
[¶ 85] Just two years ago in Mahar, we refused to recognize a cause of action for negligent supervision. 2003 ME 63, ¶¶ 10-11, 823 A.2d at 543. Although Mahar was a split opinion on application of the common law of agency, both the majority and the dissent agreed that we would not recognize the tort of negligent supervision. Id. ¶28, 823 A.2d at 547. Previously, in Swanson v. Roman Catholic Bishop of Portland, 1997 ME 63, 692 A.2d 441, we stated that: “[w]e have never decided that the negligent supervision of an employee constitutes an independent basis for liability on the part of an employer.” Id. ¶ 9, 692 A.2d at 443-44. We then concluded that constitutional considerations would bar a negligent supervision claim against the church in that case. Id. ¶ 9, 692 A.2d at 444. We have restated our refusal to recognize the tort of negligent supervision in several cases cited by the Court.
[¶ 86] The facts in Mahar for recognizing that tort were particularly compelling. A truck driver, driving on his assigned route, committed acts of criminal threatening, terrorizing, and driving to endanger against occupants of a motor vehicle over a distance of fifty miles. 2003 ME 63, ¶¶ 3-5, 823 A.2d at 541-42. Subsequently, the driver was convicted for crimes arising out of this activity. Id. ¶ 5, 823 A.2d at 542. In Mahar, there was evidence that, prior to the event, the employer was on notice regarding its employee’s dangerous driving tendencies. Id. ¶ 9 n. 2, 823 A.2d at 542. Had we recognized the tort of negligent supervision in Mahar, the plaintiff occupants of the motor vehicle would have had a cause of action against the trucking company. Because we declined to recognize that cause of action, the injured plaintiffs in that case were left with a cause of action against only the judgment-proof tortfeasor who had acted outside the course and scope of his employment.
[¶ 87] The negligent supervision tort is not limited to sexual abuse or violence. It extends to any perceived misconduct or impropriety. Section 317 of the RESTATEMENT (SECOND) OF TORTS, apparently adopted by the Court today, describes an employer’s duty to control his or her employees in a negligent supervision cause of action as follows:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an un*1235reasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
RESTATEMENT (SECOND) OF TORTS § 317 (1965).
[¶ 88] Accordingly, if it is alleged that an employer “knows or should know” of an employee’s past impropriety, and it is also alleged that the impropriety manifested itself again to cause harm, that is all that must be alleged to defeat a motion to dismiss and get the case to trial.19
[¶ 89] Here, the recognized claim is sexual misconduct with a minor. In the next case, the asserted claim may be an allegation of after-hours assault by an employee of a business that allegedly had some notice that the employee had a short temper, or an allegation of after-hours harassment by an employee of a business that allegedly had some notice that the employee had a tendency to use foul or demeaning language. With this change in the law, the Court is taking a major step toward making organizations and businesses, big and small, responsible for any improprieties committed by employees outside of normal business activity, if those outside actions harm persons with whom the employee has had contact as a result of business or organizational activity.
[¶ 90] The message this sends to businesses, churches, and other organizations is one of zero tolerance, no forgiveness, no redemption, no second chances. When a business is aware that an employee may have, in the past, engaged in some impropriety, that business may be liable if the employee is allowed to continue to come in contact with the public and again engages in some similar impropriety. The result may be termination- or refusal to hire individuals with less than perfect records in relations with the public.
[¶ 91] The Court’s opinion at some points suggests that it is addressing fiduciary duty as an element of the negligent supervision claim. In Bryan R. v. Watchtower Bible & Tract Society of New York, Inc., 1999 ME 144, ¶¶ 3, 15, 17, 738 A.2d 839, 842, 845, we refused to hold that a religious organization had a fiduciary duty to protect a minor from sexual abuse by an adult member of the organization who was a known child molester and who had been placed in “a position of leadership and respect” within the organization,, thus gaining the minor’s trust and confidence. Id. ¶ 5, 738 A.2d at 842. In Bryan R., we stated that a fiduciary duty would be found to exist only when the law will recognize both the disparate positions of the parties and a reasonable basis for the placement of trust and confidence in the superior party in the context of specific events at issue. Id. ¶ 19, 738 A.2d at 846. We affirmed the grant of a motion to dismiss in Bryan R., stating that we found no support for plaintiffs claim of a fiduciary relationship, “[n]or have we ever found a fiduciary relationship to exist in the circumstances presented here.” Id. ¶ 18, 738 A.2d at 846.
*1236[¶ 92] Bryan R., which addressed improprieties occurring outside the course and scope of the church’s business or activities, should remain the law. The duty properly asserted here relates to improprieties occurring within the course and scope of the church’s business. That fact, that the impropriety was within the course and scope of the church’s activities, is what gives rise to the duty not to place under the direction of a suspected sex abuser minors invited to the church to attend to the church's business and to serve the church’s mission.
[¶ 93] Depending upon development of the facts, and resolution of the First Amendment issues upon which the Court appropriately reserves judgment, Fortin may have a remedy under well-established principles of Maine law. An employer is vicariously hable for harm caused by an employee that occurs within the course and scope of the employer’s business or activity. No change in law is required to provide this remedy for harm to Fortin while he was a minor, and neutral principles of law may be applied to adjudicate the issue.
[¶ 94] By contrast it will be difficult to adjudicate a negligent supervision claim by limiting the court’s inquiry to principles of secular law. The question of whether there may be fault in the bishop’s supervision of a priest will require reference to canon law to determine whether, and to what extent, the bishop may have acted unreasonably, presumably by the “reasonable bishop” standard, however that may be defined. As one recent scholarly review of the law has observed:
To determine whether a court should hold a diocese liable for negligently hiring or supervising a priest, the court will need to decide that the bishop or some other agent of the diocese possessed the authority to hire, supervise, or remove that priest, and that the diocese’s agent acted carelessly in exercising that authority. Both of these determinations invite much the same inquiry as that deemed unconstitutional when applied to claims of clergy malpractice. To establish the bishop’s authority over the priest, the plaintiff must introduce evidence of such authority from canon law or from the practices of the defendant or other dioceses. To establish the allegedly unreasonable exercise of the diocese’s authority, the plaintiff must present evidence of what a reasonable person who possessed that authority would have done. The court will be obliged to address the question “what would a reasonable bishop have done?”
Ira C. Lupu & Robert W. Tuttle, Sexual Misconduct and Ecclesiastical Immunity, 2004 BYU L. REV. 1789,1854-55.
[¶ 95] Another canon law scholar has noted that:
The authority to impose penalties [on clerics] stems both from the Church’s mission to preach the healing love of Christ as well as the need to maintain ecclesiastical order. The origins of this penal theory derive from the centrality of the forgiveness of sins in the Gospels and experience of the early Church.
John J. Coughlin, The Clergy Sexual Abuse Crisis and The Spirit of Canon Law, 44 B.C. L. REV. 977, 992-93 (2003) (citation omitted). Rev. Coughlin further writes:
The principle of the salvation of souls distinguishes canon law from the secular law of the civil state. The secular order aims to establish a set of societal conditions that maximize the opportunity for material well-being and prosperity. Canon law, however, seeks to create the optimal conditions for salvation through the proclamation of conversion, forgiveness and penance.
Id. at 995.
[¶ 96] The inquiry into the bishop’s supervision approved by the Court necessari*1237ly requires inquiry into the bishop’s ecclesiastical governance pursuant to canon law, and, perhaps imposition of secular standards upon church organization and administration. The Establishment Clause has been viewed as forbidding “a state from using civil law to impose a normative vision of the structure of religious organizations.” Lupu & Tuttle, Sexual Misconduct and Ecclesiastical Immunity, 2004 BYU L. REV. at 1844. While we defer resolution of the First Amendment question to the development of the facts, the Court’s adoption of a theory of liability with “supervision” as its centerpiece necessarily will require the entangled inquiry into canon and secular law and religious doctrine that the Fust Amendment prohibits. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 713, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).
[¶ 97] I would not overrule Swanson, nor would I adopt the tort of negligent supervision to address improprieties that occur outside the scope of an employer’s or organization’s business.
. Where the negligent supervision doctrine applies, “the master may subject himself to liability under the rule [of negligent supervision] by retaining in his employment servants who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others.” RESTATEMENT (SECOND) OF TORTS § 317 cmt. c (1965). As stated in section 317, the negligent supervision doctrine only applies to employee conduct outside the scope of employment, and can create liability based on employer knowledge of employee conduct or misconduct that occurs outside the scope of employment.
. Fortin's minority is a crucial element of the cause of action, because the statute of limitations, 14 M.R.S.A. § 752-C(l) (2003), is only extended for improper sexual acts committed against Fortin while he was a minor. Fortin was born on or about December 31, 1971. He turned eighteen on or about December 31, 1989. The presently available record indicates that some time in March of 1990, the Roman Catholic Bishop of Portland received a letter indicating that Father Melville may have been engaging in sexual contact with children. That letter, and the Bishop's alleged negligent reaction to it, could only form the basis for claims against the church by Fortin as an adult. Those claims appear to be barred by the six-year statute of limitations pursuant to 14 M.R.S.A. § 752 (2003).
. Presumably, the plaintiffs must also allege some relationship to the employer that led to the contact with the improperly acting employee, but the elements outlined in section 317 of the Restatement do not include that limitation on potential employer liability.