concurring in part, dissenting in part.
This tort claim action and the liability that plaintiff seeks to impose on defendants arises from the conduct of two *697priests, Charvet and Frank. I agree with the majority’s reasoning and conclusions with regard to the conduct of Frank but not with regard to the conduct of Charvet.
With respect to vicarious liability for the conduct of both priests, Chesterman v. Barmon, 305 Or 439, 753 P2d 404 (1988), is the seminal case regarding whether an employer is liable for an employee’s torts when the employee purportedly acts within the scope of employment. As the majority correctly recites, three requirements must be satisfied in order to conclude that an employee’s tort was within the scope of employment: (1) the act occurred substantially within the time and space limits authorized by the employment; (2) the employee was motivated, in part, by a purpose to serve the employer; and (3) the act is of a kind that the employee was hired to perform. 305 Or at 442. Even though a particular act, like a sexual assault, may not be within the actual scope of employment, if acts that were within the scope of employment resulted in conduct that led to the injury to the plaintiff, then vicarious liability exists. Id. at 443.
Even when plaintiff is given the benefit of all reasonable inferences that flow from the evidentiary record, there is no evidence that Frank was performing a pastoral role defined for him by his employer or by his job description that resulted in the sexual assault on plaintiff. It was merely coincidence that Frank encountered plaintiff while plaintiff was roller skating on a sidewalk adjacent to the church. Plaintiff had fallen down, and Frank, on the pretense of examining plaintiffs scraped knees, asked plaintiff to take his pants down. The sexual assault on plaintiff followed thereafter. There is simply no evidence that Frank’s assistance to plaintiff constituted the performance of his job duties. Rather, by coming to the aid of plaintiff, an injured eight-year-old boy, Frank conducted himself in the same way that any concerned bystander might have. It follows that the majority correctly holds that the archdiocese is not vicariously liable for the conduct of Frank.
In contrast to the conclusion that follows from the application of the above rules to Frank’s conduct, the circumstances of Charvet’s abuse of plaintiff require a different result when plaintiff is given the benefit of all reasonable *698inferences that flow from the circumstances of the incident. The Charvet incident occurred when plaintiff was a student at Mt. Angel Seminary. Charvet was plaintiffs faculty advisor and dormitory proctor. Charvet asked plaintiff to meet him in Charvet’s office. Obviously, any freshman high school student who is asked by a faculty advisor to meet with him would understand that the advisor was exercising his authority over him by virtue of their faculty-student relationship. Indeed, plaintiff was instructed by Charvet to stand in front of Charvet’s desk. Charvet began the encounter by asking plaintiff what plaintiff knew about the subject of sexuality and reproduction, including the subject of masturbation. A jury could reasonably find that Charvet was inquiring of plaintiff about a subject that was within the scope of Charvet’s authority to counsel him as plaintiffs freshman advisor and dormitory proctor. A jury could also reasonably infer from the evidence that Charvet began to masturbate in plaintiffs presence.1 Although Charvet did not touch plaintiff at that time or encourage him to participate in sexual activity, a jury could reasonably infer from the evidence that Charvet masturbated in plaintiffs presence in order to induce him to participate in future sexual conduct with Charvet. It follows, when plaintiff is given the benefit of all reasonable inferences that arise in his favor from the summary judgment record, that a jury could find defendant Mt. Angel Abbey vicariously liable for Charvet’s conduct. That is so because the abuse occurred while Charvet was purporting to counsel plaintiff, conduct that the abbey authorized Charvet to perform on its behalf as a faculty advisor and dormitory proctor.
The remaining question for purposes of summary judgment and the determinative issue, in my view, is whether plaintiffs claim based on Charvet’s abuse is timely in light of ORS 12.117(2)(a)(B).2 The core of my disagreement *699with the majority lies in the majority’s mistaken belief that when the legislature enacted ORS 12.117(2)(a)(B) in 1989, it did not intend to encompass within the tolling provisions of the statute conduct like Charvet’s abuse of his relationship with plaintiff. In other words, the majority believes that Charvet’s conduct was not within the contemplation of the legislature as intentional conduct by an adult that constituted “cruelty’ to a child. To begin with, I agree with the majority that the proper focus is on the meaning of the words “[a]ny mental injury to a child which results in observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.” However, unlike the majority, I believe that the meaning of that phrase can be discerned from the text and the context of the statute itself, and nothing in the majoritys recitation of legislative history undercuts that meaning.
The above phrase can be dissected into three discrete requirements: (1) a mental injury to the child; (2) that results in an observable and substantial impairment of the child’s mental or psychological ability to function; and (3) that is caused by “cruelty to the child, with due regard to the culture of the child.” The controversy in this case centers on the word “cruelty.” None of the words in the statutory phrase has a meaning specifically defined by statute. In the absence of any intent by the legislature for the words in the phrase to have special meaning, we give words of common usage in a statute their ordinary dictionary meaning. Here, the word “cruelty’ and its derivatives are words of common usage that have ordinary dictionary meanings that connote inhuman treatment or the causing of pain or distress. Webster’s Third New Int’l Dictionary 546 (unabridged ed 2002). Thus, in a general sense, the word and its derivatives can apply to a number of circumstances and therefore, on its face, “cruelty’ would seem to be susceptible to more than one reasonable interpretation. However, where words of common usage are used in a way that has a well-defined legal meaning to the legislature, they will be given that particular meaning. Wal-Mart Stores, Inc. v. City of Central Point, 341 Or 393, 397,144 P3d 914 (2006).
*700By the time that ORS 12.117(2)(a)(B) was enacted in 1989, the term “cruelty” had been used in a number of Oregon statutes related to child abuse.3 In fact, the child abuse reporting statutes, former ORS 418.740 to 418.775 (1987), repealed by Or Laws 1993, ch 546, § 141, similarly defined “child abuse” to include “[a]ny mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.” Former ORS 418.740(l)(b) (1987). The term “cruelty” also appeared in former ORS 416.030(2)(c) (1987), repealed by Or Laws 2001, ch 900, § 261, which pertained to exemptions from liability concerning public assistance payments. That statute provided that no liability for the support of a needy person shall be imposed under the Relatives’ Financial Responsibility Law on “[t]he child of a needy person if, during the minority of the child, such person wilfully deserted or abandoned the child, or, by expulsion or cruelty, drove the child from the parental home * * *.”4 (Emphasis added.) Also, under former ORS 419.523(2)(c) (1987), repealed by Or Laws 1993, ch 33, § 373, parental rights could be terminated based on conduct “toward any child of an abusive, cruel or sexual nature.”
Also, prior to the enactment of ORS 12.117(2)(a)(B), we interpreted the word “cruelty” in ORS 416.030(2)(c) in accordance with the Supreme Court’s use of that term in a related context. Kerr v. Welfare Comm., 3 Or App 27, 31, 470 P2d 167 (1970), cert den, 402 US 950 (1971). We relied on Chaffin v. Chaffin, 239 Or 374, 397 P2d 771 (1964), which addressed the type of conduct by a father toward his child that could give rise to the child’s right of action against the father. In Chaffin, the court held:
*701“[A]n act by a parent, whether described as willful or malicious or wanton, which will pierce the veil of parental immunity, is an act which is done with an intention to injure the child or is of such a cruel nature in and of itself as to evidence not a reasonably normal parental mind, but an evil mind, malo animo.”
239 Or at 387. The court then concluded that allegations of a father’s gross negligence were not sufficient to “be considered as an act of cruelty in and of itself, disclosing a cruel mind or wicked intent.” Id. We recognized that Chaffin was decided in a different context but nevertheless concluded that it “aptly describes the type of conduct necessary to constitute ‘cruelty’ within ORS 416.030(2)([c]),5 thereby insulating a child from liability for contribution for the support of a parent under the Act.” 3 Or App at 31.
The Chaffin construct, which we imported into former ORS 416.030(2)(c) in Kerr, is also consistent with the definition of the term “cruelty” in Black’s Law Dictionary. See Wal-Mart Stores, Inc., 341 Or at 398 (referring to Black’s Law Dictionary to determine the well-established legal meaning of the term “service”). At the time that each of the above-referenced statutes was enacted, that dictionary defined the term “cruelty” as
“[t]he intentional and malicious infliction of physical suffering upon living creatures, particularly human beings; or, as applied to the latter, the wanton, malicious, and unnecessary infliction of pain upon the body, or the feelings and emotions; abusive treatment; inhumanity; outrage.”
Black’s Law Dictionary 340 (5th ed 1979) (emphasis added).6
Thus, at the time that ORS 12.117 was enacted, the term “cruelty,” at least with respect to conduct toward children, was generally understood by the legislature to encompass two categories of acts. First, the term included acts that were specifically intended to inflict harm on a child by an *702actor, i.e., any act intended to harm a child was, by definition, cruel to the child. Second, the term included the performance of acts that by their very nature expressed a wanton disregard for the welfare of the child such that they evidenced an “evil mind.”
That dualistic understanding of the legislature’s use of the word “cruelty’ is supported by the texts of the various statutes designed to prevent “child abuse” and the policy underlying those statutes. In particular, that understanding is consistent with the provisions of the child abuse reporting statutes, a portion of which was imported by the legislature into ORS 12.117 in 1989. The legislative policy underlying those abuse reporting statutes was expressed in former ORS 418.745 (1987):
“The Legislative Assembly finds that for the purpose of facilitating the use of protective social services to prevent further abuse, safeguard and enhance the welfare of abused children, and preserve family life when consistent with the protection of the child by stabilizing the family and improving parental capacity, it is necessary and in the public interest to require mandatory reports and investigations of abuse of children.”
Also, former ORS 418.740(1) (1987) provided that “[a]buse” means:
“(a) Any physical injury to a child which has been caused by other than accidental means, including any injury which appears to be at variance with the explanation given of the injury.
“(b) Any mental injury to a child, which shall include only observable and substantial impairment of the child’s mental or psychological ability to function caused by cruelty to the child, with due regard to the culture of the child.
“(c) Sexual abuse, including but not limited to rape, sodomy, sexual abuse, sexual penetration with a foreign object and incest, as those acts are defined in ORS chapter 163.
“(d) Sexual exploitation, including but not limited to:
“(A) Contributing to the sexual delinquency of a minor, as defined in ORS chapter 163, and any other conduct which allows, employs, authorizes, permits, induces or *703encourages a child to engage in the performing for people to observe or the photographing, filming, tape recording or other exhibition which, in whole or in part, depicts sexual conduct or contact, as defined in ORS 167.002 or described in ORS 163.665 and 163.670, or sexual abuse involving a child, but not including any conduct which is part of any investigation conducted pursuant to ORS 418.760 and which is not designed to serve educational or other legitimate purposes; and
“(B) Allowing, permitting, encouraging or hiring a child to engage in prostitution, as defined in ORS chapter 167.
“(e) Negligent treatment or maltreatment of a child, including but not limited to the failure to provide adequate food, clothing, shelter or medical care. However, any child who is under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the child or the child’s parent or guardian shall not, for this reason alone, be considered a neglected or maltreated child under this section.
“(f) Threatened harm to a child, which means subjecting a child to a substantial risk of harm to the child’s health or welfare.”
Thus, former ORS 418.740(1) (1987) protected children from physical and mental injury by requiring the reporting of a variety of acts. Some of those acts pertained to intentional physical injury to children, former ORS 418.740(l)(a); some involved mental injury to children, former ORS 418.740(l)(b); some were crimes that presumptively caused physical or mental injury to children, former ORS 418.740(l)(c) and (d); and some involved negligence, maltreatment, and even threatened harm to children, former ORS 418.740(l)(e) and (f). In light of the broad scope of the child abuse reporting statutes — which included even acts of negligence that put children at risk — the legislature certainly would have intended to include, within the definition of “cruelty,” acts that were either specifically intended to inflict harm on a child or acts that by their very nature were of such wanton disregard for the welfare of a child that they evidenced an evil intent on the part of the actor. It would be *704nonsensical to require mandatory abuse reporting of negligent acts that could harm a child while, at the same time, not requiring the reporting of a mental injury that has actually occurred as the result of conduct intended to inflict that injury or conduct that evidenced a wanton disregard for the child’s welfare.
In sum, to protect children from mental injuries, the legislature intended the word “cruelty” in former ORS 418.740(l)(b) to have a well-defined legal meaning — that is, to describe acts that are intended to inflict mental injury on a child as well as acts that, by their very nature, manifest a wanton disregard for the welfare of the child and an evil intent. When the legislature adopted the language of former ORS 418.740(l)(b) in ORS 12.117(2)(a)(B) as a basis for tolling the running of the statute of limitations on claims for civil damages arising out of child abuse, the legislature manifested an intent to similarly extend the time for bringing a claim for mental injuries that were either intentionally inflicted or were inflicted by actions that, by their very nature, qualified under the second category of “cruelty.”
The question, therefore, is whether Charvet’s masturbation in front of a 14-year-old child, after compelling the child to be in his presence for the ostensible purpose of imparting sex education, is the kind of act that falls within the second category of “cruelty” as contemplated by the legislature through its enactment of ORS 12.117(2)(a)(B). Said another way, is Charvet’s conduct of such a nature that it evidences a wanton disregard for the welfare of a child and an “evil mind”? As a matter of common sense, I would conclude that masturbating in front of a child is conduct that the legislature would have regarded as evidencing a wanton disregard for the welfare of the child and an “evil mind.”
There was, however, another statute in effect at the time that the legislature enacted ORS 12.117(2)(a)(B) that further informs the issue. ORS 163.575(1) (1987) provided that “[a] person commits the crime of endangering the welfare of a minor if the person knowingly: (a) [finduces, causes or permits an unmarried person under 18 years of age to witness an act of sexual conduct * * * as defined by ORS 167.060[.]” ORS 167.060 (1987) defined “sexual conduct” to *705include “human masturbation.” In other words, had Charvet caused plaintiff to witness him masturbating in 1989, when the legislature enacted ORS 12.117(2)(a)(B), that conduct would have constituted the crime of endangering the welfare of a minor.7
Given the interrelated purposes of the various statutes protecting children from abuse, it is apparent that the legislature would have intended “cruelty” to include at least some of those acts that it made crimes under ORS 163.575(1) (1987). Although not all acts that endanger a child necessarily constitute acts of “cruelty,” the common legislative policy underlying the various statutory schemes suggests that the legislature, by making such conduct a crime, would also have intended masturbating in front of a child to constitute “cruelty” for purposes of the child abuse reporting statutes and the statute of limitations in ORS 12.117.8 Also, I have no *706doubt that, with respect to masturbation in front of a child, the legislature also would have intended mandatory abuse reporters to report that conduct in the event that a mental injury resulted from it. Because ORS 12.117(2)(a)(B) is similarly intended to protect children from abuse, and because the statute of limitations is tolled under ORS 12.117(2)(a)(B) for the same conduct that would be reported by mandatory abuse reporters in the case of mental injuries, I conclude that Charvet’s conduct constitutes an act of “cruelty” under ORS 12.117(2)(a)(B). It follows that the trial court erred when it granted summary judgment on the basis of ORS 12.117(2)(a)(B) and that plaintiff should have the opportunity to have a jury decide whether the statute tolls his claims against Charvet and Mt. Angel Abbey.9
Defendants are entitled to summary judgment only if no genuine issue of material fact exists when the record is viewed in the light most favorable to plaintiff and when no objectively reasonable juror could return a verdict for him. ORCP 47 C.
Mt. Angel Abbey also argues that because Charvet did not touch plaintiff, ORS 12.117 is inapplicable. In my view, the commission of an act of cruelty to a child does not require a physical touching as a matter of law.
Beginning in 1884, the appellate courts began to wrestle with what conduct constitutes “cruelty” in other contexts. See, e.g., Taylor v. Taylor, 11 Or 303, 8 P 354 (1884) (holding that a divorce decree granted on the ground of cruelty must be reversed for insufficient evidence). Before 1971, a statutory ground for divorce in Oregon was “[c]ruel and inhuman treatment!.]” See, e.g., former ORS 107.030(6) (1969), repealed by Or Laws 1971, ch 280, § 28.
See also former ORS 163.650 (1969), repealed by Or Laws 1971, ch 743, § 432 (making it unlawful for any person, not being a parent of the child, to “cruelly” mistreat and maltreat a child under the age of 16 years); State v. Samter, 4 Or App 349, 479 P2d 237 (1971) (interpreting that statute).
At the time of the decision in Kerr, the relevant provision of former ORS 416.030 was numbered 2(b) rather than 2(c).
The most recent edition oí Black’s Law Dictionary no longer includes the text emphasized above. Black’s Law Dictionary 405 (8th ed 2004). It now contains a separate reference to the term “cruelty to a child” and simply cross-references the definition for “child abuse.” Id.
ORS 163.575(1) (1987) described a number of acts that the legislature considered to endanger the welfare of minors, including permitting a minor to remain in a place where unlawful activity involving controlled substances occurred, inducing a minor to participate in illegal gambling, selling a minor tobacco products, and selling a minor articles used to deliver smoke from controlled substances. Most, if not all, of the acts enumerated are acts that the legislature apparently deemed to be in such wanton disregard of the welfare of children that they evidenced an evil intent.
The majority seizes on the fact that some of the acts in ORS 163.575(1) (1987) do not by their nature constitute “cruelty to a child” and then relies on former ORS 419.476(l)(e) (1987), repealed by Or Laws 1993, ch 33, § 373, which, in its view, “controverts the inference that the dissent draws from ORS 163.575U” 218 Or App at 674-75 n 7. Former ORS 419.476(l)(c) (1987) provided that a child was within the jurisdiction of the juvenile court if the child’s “behavior, condition or circumstances are such as to endanger the welfare of the person or the welfare of others [.] ” The majority therefore concludes that, “[pjroperly interpreted, that statute demonstrates that the legislature regarded child endangerment and cruelty to a child as two separate concepts.” 218 Or App at 674-75 n 7. The majority misses the point of the comparison of the provisions of ORS 12.117(2)(a)(B) with the provisions of former ORS 418.740(l)(b) (1987), former ORS 416.030(2)(c) (1987), former ORS 419.523(2)(c) (1987), former ORS 419.476(l)(e) (1987), and ORS 163.575(1) (1987). I do not rely on any of those statutes to directly equate the concepts of cruelty to a child and endangering a child. I recognize that it does not necessarily follow from the fact that conduct endangers a child that it also constitutes “cruel” conduct. But on the other hand, conduct could both be “cruel” and endanger the welfare of the child. Under former ORS 419.476 (1987), a child could have been within the jurisdiction of the juvenile court because the child’s circumstances endangered the child’s welfare or because the child had been subjected to cruelty, or for some other reason, and the child’s circumstances could satisfy more than one of those bases for jurisdiction. Thus, it does not logically follow from the fact that the legislature intended that there be multiple grounds for juvenile court jurisdiction, that it also did not have a well-defined understanding of what conduct constituted “cruelty to *706children,” or that Charvet’s conduct, a crime under an existing statute, would not fall within the parameters of the legislature’s contemplation regarding the general understanding of the meaning of that phrase. In sum, the language in former ORS 419.476(l)(c) (1987) does not “controvert” any inference arising from all of the statutes existing in 1989 that pertained to cruelty to a child; rather, it is additional support for the understanding advanced above.
I do not understand Mt. Angel Abbey to have argued to the trial court in its summary judgment motion that plaintiff discovered his injury and its causal connection more than three years before he brought this action, thus causing his claim to have expired before he brought the action. Rather, it argued that “Father Charvet allegedly masturbating in front of plaintiff when plaintiff was in high school is not ‘child abuse’ as a matter of law” and “Mt. Angel cannot be held vicariously liable for the alleged acts of Father Charvet.” Because the above issue does not appear to have been litigated in the trial court, we are unable to consider whether the trial court’s ruling was correct for the wrong reason.