concurring.
¶ 1 I concur in today’s opinion and write separately to provide additional analysis that supports the court’s reversal of summary judgment.
I
WHETHER A SERVANT WAS ACTING AS AN AGENT FOR HER MASTER IS A QUESTION OF FACT AND NOT A QUESTION OF LAW
¶ 2 The core issue of whether the caregiver-assailant, while in the act of hitting an infant, believed she was furthering the master’s interests or acted on an emotional impulse of her own, presents an agency-status question of fact.1 There is ample indication in the evidentiary material used in the summary nisi prius process which makes the employer’s respondeat superior liability an issue (a) either of a disputed fact or (b) one of undisputed fact from which opposite inferences may be drawn.
¶ 3 Abandonment of a mission for the master to follow a personal pursuit occurs, in a case like this, with a change in the servant’s mental state. It may happen in a veritable instant by a sudden transformation of the mind.2 The change’s occurrence need not be *609apparent to an eye nor be confirmable by visual or auditory senses.3 It must be divined from the totality of circumstances that include the caregiver-assailant’s behavior at and immediately before the critical moment.4
II
THE RECORD OF JUDICIAL PROCESS THAT CULMINATED IN THE NISI PRIUS SUMMARY JUDGMENT FOR THE DEFENDANT, WHICH THE COURT REVERSES TODAY, SUPPORTS NEITHER A JUDGMENT FOR THE PLAINTIFF NOR ONE FOR THE DEFENDANT
A.
The Standard of Review On Summary Process
¶ 4 Summary judgment is permissible only if no substantial controversy exists as to any material fact.5 Disputed issues of fact must be resolved by trial, the law’s very antithesis of summary decisional process. When un-controverted proof lends support to conflicting inferences,6 the choice to be made *610between the opposite alternatives does not present an issue of law for the court but rather one for the trier of fact.7 All inferences to be drawn from the evidentiary materials must be viewed in the light most favorable to the nonmoving party.8 Only if the court should conclude there is no material fact (or opposite inferences) in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary relief in its favor.
B.
The Employer’s Vicarious Tort Liability
¶ 5 The common-law doctrine of responde-at superior makes an employer vicariously liable for the acts or omissions of an employee acting within the scope of his employment. If the employee’s offending conduct may be viewed as willful, an employer cannot be held vicariously liable unless its employee’s act is found to have been “incidental to and in furtherance of’ its business.9 Except in cases where only one reasonable deduction can be drawn from the facts, the question whether an employee has acted within the scope of employment at any given time is generally one for the trier of fact.10
C.
The Record Does Not Support but a Single Inference That Establishes The Hospital Vicariously Liable as a Matter of Law
¶ 6 An examination of the evidentiary materials submitted in favor of plaintiffs’ quest for summary relief demonstrates that both parties rely on uncontroverted facts from which opposing inferences may be drawn.11 The caregiver-assailant’s guilty plea in the felony child abuse case as well as her statements to the detective about the circumstances of the child’s injuries support inferences for both exoneration and liability. One inference would tend to indicate that by striking the baby’s head in an attempt to quiet it the caregiver-assailant believed she was in fact furthering the master’s interests or she was acting on an emotional impulse that grew out of (or was incident to) an attempt to perform the master’s business. But a contrary inference also can clearly be drawn from the caregiver-assailant’s ad*611mission of an intentional felony assault upon the infant. Her guilty plea facially shows a state of mind incompatible with performing a mission for the employer.12 That contrary inference is more consistent with the notion that she had departed from the employer’s mission to commit an intentional criminal act prompted by purely personal motives of annoyance (or irritation) unrelated to accomplishing any objectives incident to the employer’s interest. In short, the caregiver-assailant’s admission against interest in the criminal case tends to reveal her motives to have been dehors the scope of employment. Inferences to be drawn from this evidentiary material should be viewed in ' the light most favorable to the nonmoving party — the Hospital.
¶ 7 This ease demonstrates a classical scenario for jury assessment. The Hospital defending against respondeat superior liability must convince the jury that for an instant— no matter how short — its employee formulated an intent to harm the baby which was sufficient in law to sever her act from her mission for the employer.13 The plea of guilty to an intentional felony assault does by itself support the Hospital’s claim to not being civilly accountable. On thé other hand, the plaintiffs may draw numerous inferences to persuade the triers that the caregiver-assailant’s acts are entirely consistent with her continued and uninterrupted course of performance of a mission for the employer.
¶ 8 The submission of respondeat superior liability to the trier is commanded by Art. 2, § 19, Okl. Const.14 Moreover, it is highly improper for an appellate court to make first-instance determinations of disputed issues of either law or fact.15 That function *612belongs to the trial-level tribunals in every case — whether in law, equity or on appeal from an administrative body.
Ill
SUMMARY
¶ 9 The determination of respondeat superior liability presents a question of fact, not of law. Its resolution by the court would usurp both parties’ right to a jury’s decision which is guaranteed by the provisions of Art. 2 § 19, Okl. Const.
¶ 10 I hence join the court’s reversal of the trial court’s summary judgment and its vacation of the pronouncement by the Court of Civil Appeals.
. Reed v. Anderson, 1927 OK 334, 259 P. 855, 856.
. This approach to respondeat superior liability for an employee’s on-duty assault, much like that in this case, is proposed by Comment f, § 245, Restatement (Second) of Agency (1958), where it is stated:
"f. Servant actuated by personal motives.
The liability of a master for the use of force by a servant is not prevented by the fact that the servant acts in part because of a personal motive, such as revenge. The master, however, is relieved from liability under the rule stated in this Section if the servant has no intent to act on his master's behalf, although the events from which the tortious act follows arise while the servant is acting in the employment and the servant becomes angry because of them. The fact that the servant acts in an outrageous manner or inflicts a punishment out of all proportion to the necessities of his master’s business is evidence indicating that the servant has departed from the scope of employment in performing the act.”
(emphasis added).
The current ALI project on a new agency's restatement is still work in progress. Its most recent draft of Chapter 7 (Torts — Liability of Agent and Principal), proposed Restatement (Third) of Agency (Tentative Draft No. 5, 2004), appears to make extensive changes in respondeat superior liability for an on-duty assault upon a third party. The changes, all of which appear consistent with this concurrence, are manifested by these telling snippets from the text:
"§ 7.07 Employee Acting Within Scope of Employment * * * (2) An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.”
(emphasis added).
*609Comment:
"b. * * * Under subsection (2) an employee's tortious conduct is outside the scope of employment when the employee is engaged in an independent course of conduct not intended to further any purpose of the employer. ... The employee’s intention severs the basis for treating the employee’s act as that of the employer in the employee’s interaction with the third party.”
"c * * * ⅛ determining whether an employee’s tortious conduct is within the scope of employment, the nature of the tort is relevant, as is whether the conduct also constitutes a criminal act. An employee’s intentionally criminal conduct may indicate a departure from conduct within the scope of employment, not a single escalation. ... Matters of degree are also relevant to this determination. For example, in Illustration 5, A's act is within the course of employment when A slams into the stack of trays at the culmination of A's attempt to resolve T's complaint about service in the restaurant. If, instead, A draws a gun and shoots T, the nature of A’s action — which constitutes a serious crime — and its extreme nature may indicate that A has launched upon an independent course of action. * * *"
(emphasis added).
REPORTER’S NOTES:
Smith v. Goodyear Tire & Rubber Co., Inc., 856 F.Supp. 1347 (W.D.Mo.1994), is cited as a representative recent case “involving intentional torts within the scope of employment.” In Smith, the court gave the plaintiff/franchisee (nonmovant) the benefit of all reasonable inferences from the evidence, holding that summary judgment is inappropriate when there is a dispute over a material fact as to the motivation of the defendant/franchisor’s employee, who allegedly acted intentionally to harm the franchisee.
. By the evolving norms of soon-to-be restated common law of today, the line separating a master's respondeat superior liability from a servant’s individual responsibility for the latter's on-duty assault is drawn somewhere between a servant’s venting purely personal spleen on a third party and the point at which the servant continues to press the master's interest with mistaken vigor and in an inappropriately aggressive manner.
. Rodebush v. Oklahoma Nursing Homes, Ltd., ¶¶ 12-15, 1993 OK 160, 867 P.2d 1241, 1245-46; Mistletoe Express Service v. Culp, 1959 OK 250, ¶ 28, 353 P.2d 9, 12; Hill v. McQueen, 1951 OK 47, ¶ 7, 204 Okl. 394, 230 P.2d 483, 485-86. Hill reflects the earlier common-law view by which employer’s respondeat superior liability for the employee’s on-duty assault was treated as a question of law when the assault could be deemed clearly unrelated to the duties of employment. Measuring this case by the standards of yore, one cannot say that the employee’s assault was clearly unrelated to the duties of her employment. Nor can one conclude, without first committing to a preference among the competing inferences, that the caregiver’s act was related to the duties of her employment. It is hence clear here that making that critical choice is not a judge's but a jury’s province.
. Wathor v. Mutual Assur. Adm'rs, Inc., 2004 OK 2, 87 P.3d 559, 566.
. An inference is a “process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or state of facts, already proved or admitted. Inferences are deductions or conclusions which with reason and common sense lead the jury to draw from facts which have been established by the evidence in the case. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group *610of facts found or otherwise established in the action.” William E. Gallagher, Ronald C. Good-stein, Ph.D., Inference Versus Speculation in Trademark Infringement Litigation: Abandoning the Fiction of the Vulcan Mind Meld, The Trademark Reporter 1237 (November-December 2004), citing Black’s Law Dictionary, 700 (5th edition 1979).
"An inference is a permissible deduction from the evidence, and in dealing with inference the jury is at liberty to find the ultimate fact one way or the other as it may be impressed by the testimony, and the reasonable and permissible deductions therefrom. Inferences have no significance as to the duty of either party to produce evidence, and the jury may give to inferences whatever force or weight it thinks they are entitled to.” Stumpf v. Montgomery, 1924 OK 360, ¶ 0, syl. 5, 101 Okl. 257, 226 P. 65.
. Walters v. J.C. Penney Co., Inc., 2003 OK 100, 82 P.3d 578; Wetsel v. Independent School District I-1, 1983 OK 85, ¶ 8, 670 P.2d 986, 990-91; Mistletoe Express Service v. Culp, supra note 4, 353 P.2d at 12.
. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053.
. The employer’s respondeat superior liability is controlled by the teachings restated in Rodebush v. Oklahoma Nursing Homes, Ltd., supra note 4, 867 P.2d at 1245-46; see also Nelson v. Pollay, M.D., 1996 OK 142, 916 P.2d 1369, 1374, n. 23; Texaco, Inc. v. Layton, 1964 OK 51, ¶ 7, 395 P.2d 393, 396.
. Carswell v. Oklahoma State Univ., 1999 OK 102, ¶ 20, 995 P.2d 1118, 1123; Nail v. City of Henryetta, 1996 OK 12, ¶ 13, 911 P.2d 914, 918. As stated in Mistletoe Express Service v. Culp, supra note 4, at ¶ 28, 353 P.2d at 12, "the employer is not liable to third person not an invitee upon its premises for the tortious act of its employee or agent unless it is shown that such employee or agent was acting within the scope of his employment, and that the act complained of was done as a means of carrying out the job assigned to him by the employer. In other words, the fact that at the time of the assault upon the third person the employee or agent was about his employer’s business is not sufficient to affix the liability for the resulting damages upon the employer, but it must be shown that the act complained of was done for the purpose of doing the work assigned to him.” Id. citing Hitt v. McQueen, supra note 4.
. See, e.g., Canida v. Technotherm Corp., 2000 OK 83, ¶ 2, 16 P.3d 1127, 1130 (Opala, J„ concurring). The dispositive issue formed by the evidence was whether the claimant could be considered "aggressor, initiator or voluntary participant” in horseplay. From the critical record proof opposite inferences could be drawn as to the claimant’s involvement in the happenings immediately preceding the harm-dealing event. The choice to be made between these opposite inferences was for the trier of fact. Id.
. Hospital tendered the appearance docket in the criminal case brought against the employee-caregiver for felony child abuse under the provisions of 10 O.S.2001 § 7115. The docket indicates that an information was prosecuted against the caregiver-assailant and that she entered a plea of guilty. A felony judgment entered upon a plea of guilty, which is no longer subject to appellate review, is admissible in a civil case (12 O.S.2001 § 2803) solely as an admission against interest. Laughlin v. Lamar, 1951 OK 330, ¶ 5, 237 P.2d 1015, 1016; Dover v. Smith, 1963 OK 166, 385 P.2d 287; Zumwalt v. Moran, 1953 OK 223, ¶ 0 syl. 2, 260 P.2d 725. The only relevant evidence in the caregiver-assailant’s criminal case is her guilty plea and a stipulation of the offense to which the defendant pled guilty. A complete judgment roll in the criminal case is not needed because there is nothing in that judgment roll which would be admissible in the civil case. This case is distinguishable from Salazar v. City of Oklahoma City, 1999 OK 20, 976 P.2d 1056, where a complete judgment roll in a federal-court civil rights case was needed in support of the City's issue-preclusion defense interposed in a state-law tort action against the City.
. In the nineteenth-century English respondeat superior jurisprudence legal excision of a servant's on-the-job tort from his employment-related duties is described as placing him pro tonto “on a frolic of his own.” Joel v. Morison, 172 Eng.Rep. 1338, 1338-39 (1834); Faragher v. City of Boca Raton, 524 U.S. 775, 794, 118 S.Ct. 2275, 2287, 141 L.Ed.2d 662 (1998). Applying this colorful phrase to the problem at hand, the question to be posed for our answer here is whether the servant’s assault occurred when she was on a frolic of her own or can be said to have arisen out of her employment. As so re-posed, the question simply cannot be answered as a matter of law. This is so because it calls for a forensic exploration into the servant’s mental state at the critical time in question — the moment of her assault and immediately anterior to its occurrence — before legal accountability for the act may be shifted from the master to the actor and respondeat superior liability eliminated from application to the case.
. If the court were to follow here a pure summary-judgment analysis, its reasoning would result in an impermissible judicial intervention in the fact-finding process. It would also violate the plaintiffs' fundamental-law right to trial by jury under the standards of Art. 2 § 19, Okl. Const. That section keeps "inviolate” the common-law norms for drawing the line at which submission to the trier is a party’s due. Because these standards are enshrined in the state constitution — which adopted the English common-law system that prohibits judges from weighing evidence — they cannot be abrogated (impaired or abridged) by legislative or judicial action. Seymour v. Swart, 1985 OK 9, 695 P.2d 509, 511; see also Weldon v. Dunn, 1998 OK 80, ¶ 24, 962 P.2d 1273, 1283 (Opala, J., dissenting); Williams v. Tulsa Motels, 1998 OK 42, ¶ 27, 958 P.2d 1282, 1291-92 (Opala, J., dissenting); McLin v. Trimble, 1990 OK 74, 795 P.2d 1035, 1044 (Opala, V.C.J., dissenting). Here a choice needs to be made between conflicting inferences. The constitutional adoption of the common-law norm for submission of issues to a jury unequivocally commands that choicemaking between opposite inferences from undisputed proof be treated as a function of the trier of fact.
. Dyke v. St. Francis Hosp., Inc., 1993 OK 114, ¶ 11, 861 P.2d 295, 299-300; Hadnot v. Shaw, 1992 OK 21, ¶ 15, 826 P.2d 978, 983.