<img alt="Brand" src="/images/eLaws/logo-elaws.png" class="img-responsive pull-left logo-head" />

 (citations omitted, emphasis supplied). We concluded that
[w]hen a servant in carrying out his assigned duties makes an assault on a
third party as a result of a quarrel which arose as a consequence of his
performance of the tasks imposed and at the time and place of performance
of the duties he was employed to do, then the master is liable.
Kornec,

120 Mont. at 9

. Thus, a tortious and wrongful act, though not
authorized or contemplated by the employer, may occur in the scope of employment when
the employee, “in carrying out his assigned duties . . . assault[s] a third party as a result of
7
a quarrel which arose as a consequence of [the] performance of the tasks . . . he was
employed to do.” Kornec,

120 Mont. at 9

; Brenden, ¶ 18. We explained
the test for liability centered not on “whether the assault was committed in accordance with
the master’s instructions but whether the act complained of arose out of and was committed
in prosecution of the task the servant was performing for his master.” Kornec,

 (emphasis added). Thus, whether the “employee was acting at
least partially in furtherance of the employer’s interest does not depend on whether the
employer actually profited or benefitted from the act.” Brenden, ¶ 18 (citations omitted).
Even if the employee’s act is unauthorized and, the wrongful act by itself, is not motivated
by any intent or purpose to serve the employer, an employee’s tortious act may still be
incidental to expressly or implicitly authorized conduct if it is “closely intermingled” with
the employment. Keller, 111 Mont. at 40, 108 P.2d at 612.
¶12    In assessing whether an act falls outside the scope of employment, the inquiry must
focus on the nature of the employment and how the employment relates to the context in
which the commission of the wrongful act arose. The test of the employer’s liability is
whether the act complained of arose out of and was committed in prosecution of the task
the servant was performing for his master. Kornec,

120 Mont. at 12

180 P.2d at 258

.
When tortious acts are so closely associated with the employment that they arose out of
and were committed during the furtherance of a task the employee was performing for his
employer, they are within the scope of employment, making the employer liable.
Therefore, the scope of employment may extend beyond authorized acts to include acts
that the employer expressly forbids; that violate the employer’s rules, orders, or
8
instructions; that the employee commits for self-gratification or self-benefit; that breach a
professional duty; or that are egregious, malicious, or criminal.
¶13 This Court has previously recognized an underlying policy rationale for holding an
employer vicariously liable for the tortious conduct of its employees. We held in Brenden
that vicarious liability for injurious acts made in the furtherance of employment helps
prevent recurrence because it “recognizes . . . that the ‘ability to exercise control over
employees’ work-related conduct enables, and provides incentive for, the employer to take
measures to reduce the incidence of tortious conduct.’” Brenden, ¶ 13.
See also Restatement (Second) of Agency § 229 cmt. a (“[T]he ultimate question is
whether or not it is just that the loss resulting from the servant’s acts should be considered
as one of the normal risks to be borne by the business in which the servant is employed.”).
¶14 “Scope of employment” is a commonly cited principle, but its contours are not
rigidly defined. Identifying whether a tortious act falls outside an employee’s scope of
employment is necessarily fact-intensive.
An extensive search of authorities has drawn us to the conclusion that the
maze of decisions on the subject is the result of a large variety of differing
factual situations which in most cases are determinative of the question of
whether the agent is acting within the scope of his employment. While the
courts are quite harmoniously in accord in their statements of the general
rules applicable, their application of those rules has brought about such a
diversity of opinions as to make a uniform standard of measurement
somewhat difficult to apply.
Keller, 111 Mont. at 37, 108 P.2d at 610-11. These certified facts likewise present a
similar challenge here.
9
¶15 We have previously adopted and applied several factors of the Restatement
(Second) of Agency § 229 to determine the scope of employment. Keller, 111 Mont. at
36-37, 108 P.2d at 610. To the extent that any factor may be helpful in determining the
scope of employment, we adopt Restatement § 229 in its entirety. Restatement § 229,
entitled “Kind of Conduct Within Scope of Employment,” provides the following factors
to determine whether conduct, although not authorized, may be similar or incidental to the
conduct authorized thus making it within the scope of employment:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between
different servants;
(e) whether the act is outside the enterprise of the master or, if within the
enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be
done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been
furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an
authorized result; and
(j) whether or not the act is seriously criminal.
Restatement (Second) of Agency § 229. While no one factor is dispositive, each factor
requires an inquiry into how the employment relates to the context in which the
commission of the wrongful act arose. Such an inquiry mandates that the wrongful “act”
referred to in the factors be accurately identified. Here, the “act” Officer Bullcoming
committed was not sexual intercourse without consent—L.B. agreed to have sexual
10
intercourse with Officer Bullcoming in return for not being charged.3 The unauthorized
“act” Officer Bullcoming committed and for which he subsequently pleaded guilty was a
violation of

18 U.S.C. § 242

; that is, “under color of [] law, statute, ordinance, regulation,
or custom, [Officer Bullcoming] willfully subject[ed] [L.B] . . . to the deprivation of [her]
rights. . . .”4 Therefore, carefully and accurately identifying the nature of the unauthorized
“act” establishes the context in which it arose and whether it “arose out of and was
committed in prosecution of the task the servant was performing for his master.” Kornec,

120 Mont. at 10

.
¶16    The context in which the wrongful act arose is also informed by the nature of the
employment itself; that is, the activities, responsibilities, and authority that an employer
delegates to its employees through a particular employment and which constitute
authorized acts. Hence, the inquiry of whether authority inherent in the employment was
abused to accomplish a wrongful act must be made any time an employer delegates
authority to its employees and, as such, the inquiry is not unique to law enforcement. Police
officers are assigned law-enforcement and community-protection duties which include the
authority to detain, arrest, frisk, search, seize, and even use deadly force when necessary.
3
In 2019, the definition of “consent” was modified to include a provision that a “victim is incapable
of consent” when the victim is “a witness in a criminal investigation or a person who is under
investigation in a criminal matter and the perpetrator is a law enforcement officer who is involved
with the case in which the victim is a witness or is being investigated.” See § 45-5-501(1)(b)(xi),
MCA.
4
After a paternity test proved he impregnated L.B., Officer Bullcoming pled guilty to

18 U.S.C. § 242

, deprivation of rights under color of law, and was sentenced to three years in the
custody of the U.S. Bureau of Prisons.
11
Broadly, the job duties of law enforcement officers include initiating nonconsensual, and
at times invasive, physical contact with members of the public pursuant to law enforcement
goals. See, e.g., Mitchell v. Wisconsin, ___ U.S. ___, ___,

139 S. Ct. 2525

, 2538-39 (2019)
(plurality) (permitting warrantless blood tests on unconscious drivers pursuant to
drunk-driving investigations); Mullenix v. Luna,

577 U.S. 7

, 19,

136 S. Ct. 305

, 312 (2015)
(per curiam) (granting qualified immunity to an officer who fired six shots at a fleeing
felon’s vehicle, killing the driver); Maryland v. King,

569 U.S. 435

, 465-66,

133 S. Ct. 1958

, 1980 (2013) (permitting DNA cheek swabs as part of police booking procedures);
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington,

566 U.S. 318

, 324,

132 S. Ct. 1510

, 1514 (2012) (describing and permitting strip searches requiring inmates to “lift
[their] genitals, turn around, and cough in a squatting position as part of the process”);
Terry v. Ohio,

392 U.S. 1

, 17 n. 13,

88 S. Ct. 1868

, 1877 (1968) (describing the physically
invasive nature of patdowns).     Thus, policing commonly involves invasive physical
contact. This Court has previously acknowledged that “[t]o create liability for a battery by
a servant upon a third person, the employment must be one which is likely to bring a servant
into conflict with others.” Kornec,

120 Mont. at 10

. It is therefore
foreseeable that a police officer will have invasive physical contact with persons they are
investigating. Hence, the scope of a police officer’s employment contemplates physical
contact, whether wrongfully or appropriately exercised.
¶17    Further, police officers wear visible signs of this employer-conferred authority—a
marked car, uniform, badge, and weapons—which officers use to carry out their
employment duties.     These duties frequently authorize and involve entering homes,
12
detaining criminal suspects at gunpoint, placing suspects in handcuffs and into police
vehicles, and subjecting them to forceful, nonconsensual, and offensive contact. With
these considerable and intimidating powers comes an inherent risk of abuse, as our
jurisprudence on searches, seizures, and consent reveals. When the abuse is a tortious act
arising from the police officer’s employment activities, it falls to the trier of fact to
determine whether it is within the scope of employment for which the employer is liable.
Thus, if an on-duty police officer obtains consent by misusing official authority, the
wrongful act may be within the scope of employment if it arose out of the employment and
was at least partially motivated by an intent or purpose to serve the interests of his
employer. Brenden, ¶¶ 14, 16 (citing Kornec,

120 Mont. at 8-12

180 P.2d at 256-58

;
Keller, 111 Mont. at 36-40, 108 P.2d at 610-12).
¶18   The question of law for this Court to decide is whether Officer Bullcoming’s threat
of charging L.B. with a criminal offense to obtain her consent to sexual intercourse was so
disconnected from his employment activities that a trier of fact could not find that his
wrongful conduct arose out of and was committed in furtherance of Officer Bullcoming’s
criminal investigation—the authorized task he was performing for his BIA employer.
See Kornec,

120 Mont. at 12

180 P.2d at 258

. We hold that Officer Bullcoming’s wrongful
conduct was not so disconnected from his employment.
¶19 While an employee’s actions only come within the scope of employment if they are
motivated in part by a desire to serve the employer to an appreciable extent, an employee
may act with a mixed motive. Brenden, ¶¶ 17-18. The Government’s argument that
Officer Bullcoming could not have been motivated to serve the BIA’s interests assumes
13
that when Officer Bullcoming used his position as a BIA officer to obtain L.B.’s consent,
he was not in some way motivated to serve the BIA’s interests. The Government does not
support this proposition but asks this Court to accept it as axiomatic. However, here, the
certified facts could lead a trier of fact to conclude that Officer Bullcoming abused his
employer-conferred power and authority to sexually assault L.B. Officer Bullcoming was
on-duty and was dispatched to investigate a DUI involving L.B.’s mother. He entered
L.B.’s home, inquired if she was alone, took her to his patrol car, administered a
BIA-owned breathalyzer test, accused her of being intoxicated, threatened her with arrest,
and threatened to contact social services and have her children removed. Even if some of
Officer Bullcoming’s motive was “self-interest,” he was there to investigate the interests
of his employer—acting as an officer and agent of the BIA investigating a crime—when
he used his employer-conferred powers to sexually assault L.B. Officers have significant
police discretion to enforce certain laws and to let civilians off with a warning. This
discretion benefits the law enforcement agency and ultimately the taxpayers by keeping
certain violations out of the criminal justice system and freeing up government resources.
When an officer tells a law-breaking civilian he will let her go as long as she, for example,
repairs her windshield, replaces her tail-light, promises not to repeat the same unlawful
conduct, or offers to give up a criminal associate, he does so, in part, to benefit his
employer. Similarly, when an officer intimidates a civilian through, for example, the
use-of-force or the threat of force, he provides a benefit to his employer by maintaining
law and order in the community. The certified facts could lead a trier of fact to conclude
that Officer Bullcoming’s wrongful conduct was predicated upon and incident to his
14
employment as a BIA officer. The Dissent claims that any evidence of a “mixed” or “dual
motive” is purely speculative. But it is no more speculative to suggest that Officer
Bullcoming acted, in part, to further the BIA’s interests than it is to presume that he acted
“for his own personal gratification.” Dissent, ¶ 38 (emphasis omitted). There is no explicit
evidence of this in the certified facts, yet the Dissent accepts as self-evident that any person
who coerces another into unlawful sexual activity does so “solely” for his own personal
sexual gratification. Dissent, ¶ 38. Our precedents indicate that when two or more
reasonable inferences may be drawn regarding the scope of employment, the question is
one left for the trier of fact. See Bowyer v. Loftus,

2008 MT 332

, ¶ 8,

346 Mont. 182

194 P.3d 92

. The certified facts indicate that, under our respondeat superior jurisprudence,
reasonable minds could differ regarding Officer Bullcoming’s motives.
¶20    Amici and L.B. argue there is systemic misconduct within the BIA and violence
against Native American women on reservations, referring this Court to United States v.
Bryant,

579 U.S. 140

, 144,

136 S. Ct. 1954

, 1959 (2016) (noting that “American
Indian . . . women are 2.5 times more likely to be raped or sexually assaulted than women
in the United States in general” (internal punctuation and citations omitted)). The certified
facts establish that L.B. believed Officer Bullcoming’s statement that “something had to
be done” referred to sex. This illustrates her belief in and understanding of the power
dynamic at play, which, also under the certified facts, was between a BIA officer and
Northern Cheyenne resident. L.B. has established that her case should not be dismissed as
a matter of law and that she should have the opportunity to present evidence to a trier of
fact in support of her contention that Officer Bullcoming was acting within the scope of
15
his employment when he threatened her with criminal charges if she did not consent to
having sexual intercourse with him. What evidence L.B. chooses to present to prove her
allegations will be up to her, but there is no state-law bar to her claim.
¶21 The parties devote extensive briefing to the applicability of Maguire. The United
States contends Maguire is dispositive of L.B.’s claim, while L.B. urges us to overrule
Maguire. Maguire, however, fails to answer the certified question for several reasons.
First, the scope of employment was not at issue in Maguire. Rather, noting in conclusory
fashion that sexual assault was outside the scope of employment, the Court addressed the
central issue on appeal: the applicability of the nondelegable duty exception to the
respondeat superior doctrine. Maguire, 254 Mont. at 184-85,

835 P.2d at 760

. Liability
under the nondelegable duty exception may cover conduct outside the scope of
employment, and Maguire declined to extend this exception and § 214 of the Restatement
(Second) of Agency beyond inherently dangerous activities. Maguire, 254 Mont. at
184-85,

835 P.2d at 759

. While acknowledging the respondeat superior doctrine as a
precursor to reaching the exception, the Court did not meaningfully consider factors
relevant to determining whether a tortious act fell outside the scope of employment, a
different consideration altogether. Accordingly, Maguire does little to inform the scope of
a law enforcement officer’s employment.5
5
The Government relies on United States v. Olson,

546 U.S. 43

126 S. Ct. 510

 (2005), to argue
its waiver of sovereign immunity under the FTCA extends only to when there would be liability
of a “private person” for the acts of employees and that liability may not be premised upon an
entity’s government status. The Government’s argument is based upon its conclusion that Maguire
presents a bar to L.B.’s claims. However, because we distinguish Maguire and conclude it is not
16
¶22    Further, and notwithstanding the inapplicability of Maguire, the factual record here
is distinguishable.    Maguire involved the sexual assault of an intellectually and
developmentally disabled individual by her caretaker, an employee of the State. Maguire,
254 Mont. at 181,

835 P.2d at 757

. Maguire lacked evidence of threats, quid pro quo
coercion by the orderly, or even whether the sexual assault arose out of his employment—
indeed, the record contained no factual background concerning the assault whatsoever.
Maguire, 254 Mont. at 180-81,

835 P.2d at 757

. The factual record in Maguire required
no development on this issue because scope of employment was not at issue. Moreover,
the sexual assault in Maguire concerned an individual incapable of consent in any
circumstance. See § 45-5-501(1)(b)(i), MCA. Thus, whether the act fell within the scope
of his employment failed to change the calculus—it would have been sexual assault
regardless of whether it was committed by her caretaker or a stranger. Conversely, the
record here contains evidence concerning the circumstances under which L.B.’s sexual
assault by Officer Bullcoming occurred. Officer Bullcoming was only in L.B.’s home by
virtue of his status as a BIA officer. L.B. was otherwise capable of consent, but for Officer
Bullcoming’s coercive threats. It is unlikely that the statement “something had to be done”
uttered by anyone without law enforcement or similar authority would have the same
coercive weight and connotations as when Officer Bullcoming uttered those words,
repeatedly, to L.B. Maguire thus remains factually distinct.
dispositive of the issue, we decline to further address the Government’s argument and the
applicability of Olson.
17
¶23 Finally, Maguire proves inapplicable because the certified question does not ask
whether the government may be liable under the nondelegable duty exception to acts
occurring outside the scope of employment. Rather, we must address whether an
employee’s sexual assault of a member of the public while purportedly acting as an agent
of his employer constitutes behavior at the heart of the respondeat superior doctrine itself—
tortious conduct within the scope of employment.
¶24 Likewise, our holding in Paull v. Park Cty.,

2009 MT 321

352 Mont. 465

218 P.3d 1198

, has limited application here. While we adopted the Restatement (Second) of Agency
§ 214, without limitation, our antecedent analysis concluded the State owed Paull a
statutory duty arising out of the Interstate Compact for Adult Offender Supervision and
thus was in a “continuing relationship” with Paull, which we concluded was a nondelegable
duty. Paull, ¶¶ 34-38. See also Smith v. Ripley,

446 F. Supp. 3d 683

, 691 n. 5 (D. Mont.
2020) (applying Paull by conducting a two-part analysis of Montana statutory law and the
ensuing relationship arising out of a statutory duty); Shepherd v. Amtrak,

2018 U.S. Dist. LEXIS 226726

 at *4-5 (D. Mont. Aug. 15, 2018) (applying the common carrier exception
of Restatement (Second) Agency § 214 as adopted by Paull). The FTCA imparts liability
upon the United States only for actions “of any employee of the Government while acting
within the scope of his office or employment[.]”

28 U.S.C. § 1346

(b)(1). Our analysis
thus focuses on whether Officer Bullcoming’s sexual assault falls outside the scope of his
employment, an issue on which Paull and Maguire have no bearing.
¶25 Well-established case law guides our decision today, with an understandably needed
clarification of Maguire and Paull in the context of the certified facts. We expressly note
18
the consistency of our case law with the Legislature’s decision to hold an employer
responsible for an employee’s wrongs. Section 28-10-602(1), MCA, establishes that “a
principal is responsible to third persons for the . . . wrongful acts committed by the agent
in and as a part of the transaction of business, and for the agent’s willful omission to fulfill
the obligations of the principal.” (Emphasis added.) Notwithstanding, the Legislature also
provided “a principal is not responsible for other wrongs committed by the principal’s
agent except those mentioned in subsection (1) unless the principal has authorized or
ratified the acts, even though committed while engaged in the principal’s services.”
Section 28-10-602(2), MCA (emphasis added). We draw on our established jurisprudence
to inform the question of when a wrongful act is considered “[with]in and as a part of the
transaction of business.” We similarly draw on our established precedent to inform the
question of what constitutes an “authorized” act. In Keller, decided in 1940, and Kornec,
decided in 1947, and precedent thereafter, we set forth the relevant factors for determining
the scope of employment. For over 80 years, the general test of an employer’s liability
has been whether the act complained of arose out of and was committed in prosecution of
the task the servant was performing for his master. Kornec,

120 Mont. at 12

180 P.2d at 258

; Opinion, ¶ 12. While our precedent has explained the formula within the factual
contours of different cases, those cases make clear that whether a tortious act falls outside
the scope of employment will depend on the facts of the case and is not easily disposed of
as a matter of law. We conclude that whether Officer Bullcoming acted outside the scope
of his employment when he used that employment as a vehicle to obtain L.B.’s consent to
19
sexual intercourse must be answered by the trier of fact, with the guidance of the principles
set forth herein.
CONCLUSION
¶26 Our answer to the certified question is that law-enforcement officers do not, as a
matter of law, act outside the scope of their employment when they use their authority as
on-duty officers to sexually assault a person they are investigating for a crime. The test of
an employer’s liability is whether the act complained of arose out of and was committed in
prosecution of the task the officer was performing for his employer. Accordingly, in any
case evaluating whether an act falls outside the scope of employment, the inquiry must be
on the nature of the employment and how the employment relates to the context in which
the commission of the wrongful act arose. We reject the United States’ argument that
Maguire bars L.B.’s claims as a matter of law. The certified facts establish that Officer
Bullcoming was not, as a matter of law, acting outside the scope of his employment when
he sexually assaulted L.B. and the question is one for a trier of fact.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA
20
Justice Dirk Sandefur, dissenting.
¶27 I dissent. For over 125 years, generally-applicable legal standards for determining
whether, for purposes of vicarious employer liability, an employee’s unauthorized tortious
conduct was committed or engaged in within the course or scope of his or her employment
have been clearly, concisely, and consistently defined under Montana statutory and
common law. See, e.g., § 28-10-602, MCA (first enacted as Montana Civil Code §§ 3118
and 3119 (1895));1 Brenden v. City of Billings,

2020 MT 72

, ¶¶ 13-31,

399 Mont. 352

470 P.3d 168

; Kornec v. Mike Horse Mining & Milling Co.,

120 Mont. 1

, 7-12,

180 P.2d 252

,
256-57 (1947); Keller v. Safeway Stores,

111 Mont. 28

, 35-40,

108 P.2d 605

, 610-12
(1940); Harrington v. H.D. Lee Mercantile Co.,

97 Mont. 40

, 59,

33 P.2d 553

, 558 (1934);
Hoffman v. Roehl,

61 Mont. 290

, 295-300,

203 P. 349

, 349-51 (1921); Kirk v. Mont.
Transfer Co.,

56 Mont. 292

, 297-99,

184 P. 987

, 988-89 (1919); Ellinghouse v. Ajax
Livestock Co.,

51 Mont. 275

, 286-87,

152 P. 481

, 484-85 (1915). Today, however, the
Court erroneously applies our heretofore clear and consistent respondeat superior
precedent in a result-oriented manner to reach a desired ad hoc result: holding the federal
government financially liable to an innocent victim for the outrageous tortious criminal
conduct of a rogue federal law enforcement officer. The Court’s application of the
1
Section 28-10-602(1), MCA, is merely “declaratory of the common law” doctrine of respondeat
superior. Harrington v. H.D. Lee Mercantile Co.,

97 Mont. 40

, 59,

33 P.2d 553

, 558 (1934)
(construing § 7965, RCM (1921)); Hoffman v. Roehl,

61 Mont. 290

, 297,

203 P. 349

, 350 (1921)
(construing § 5450, RCM (1907)). Accord Brenden v. City of Billings,

2020 MT 72

, ¶ 13 n.2,

399 Mont. 352

470 P.3d 168

; Kornec v. Mike Horse Mining & Milling Co.,

120 Mont. 1

, 7,

180 P.2d 252

, 256 (1947) (citing §§ 7965-66, RCM (1935)); Keller v. Safeway Stores,

111 Mont. 28

, 35-36,

108 P.2d 605

, 610 (1940) (citing §§ 7965-66, RCM (1935)); Restatement (Third) of Agency § 2.04
Reporter’s Note a (Am. Law Inst. 2006) (construing § 28-10-601, MCA).
21
pertinent Montana law is patently erroneous in the manifest absence of any record
evidentiary basis upon which the finder of fact could reasonably conclude that the officer
was acting with any motive or purpose other than for his own personal sexual gratification.
A. Long Established Montana Employee Purpose/Motive Theory of Vicarious
Liability for Unauthorized Tortious Acts of Employees.
¶28    “Distinct from direct liability for an employer’s own [negligent] conduct, the
common law doctrine of respondeat superior imposes vicarious liability on employers for
the tortious conduct of employees committed while acting within the scope of their
employment.” Brenden, ¶ 13 (citing Kornec,

120 Mont. at 7

; Keller, 111
Mont. at 35, 108 P.2d at 610; Restatement (Third) of Agency §§ 2.04, 7.03(2)(a), and 7.07
(Am. Law Inst. 2006)).2 As the jump-off point for its errant application of our long and
well settled Montana vicarious employer liability standards, the Court misleadingly quotes
isolated language from our 1940 Keller decision to the effect that the “diversity of” the
various outcomes that result from application of those generally applicable standards to the
myriad of case-specific fact patterns has rendered “a uniform standard of measurement
somewhat difficult to apply.” Opinion, ¶ 14 (quoting Keller, 111 Mont. at 37, 108 P.2d at
610). After laying out what can at best be characterized as a wandering, result-oriented
2
In contrast to vicarious employer liability in respondeat superior, negligence is, of course, a
distinct theory of direct employer liability. See Brenden, ¶ 13 (distinguishing vicarious employer
liability in respondeat superior from direct theories of liability for employer’s own negligence);
Restatement (Third) of Agency § 7.07 cmt. b (the more direct and applicable theory of employer
liability is negligence “when tortious conduct by employees is reasonably foreseeable by [the]
employer”). I thus concur with the Court that neither Paull v. Park Cty.,

2009 MT 321

352 Mont. 465

218 P.3d 1198

, nor Maguire v. State,

254 Mont. 178

835 P.2d 755

(1992), have any
dispositive bearing in this case to the extent that the specific theories of employer liability at issue
in those cases were alleged breaches of employer non-delegable duties of care.
22
analytical framework, the Court then essentially concludes that the answer to the Ninth
Circuit’s question of law should be left to ad hoc jury determination based on the particular
facts of this case because “whether a tortious act falls outside the scope of employment . . .
is not easily disposed of as a matter of law.” Opinion, ¶ 24. Not so.
¶29 As a preliminary matter, most, if not all, generally applicable legal standards, such
as, for example, the reasonable care standard in negligence cases, have broad and generally
applicable legal meaning suitable for flexible but consistent application to the myriad of
case-specific factual circumstances that necessarily vary widely from case to case. As with
other generally applicable legal standards, the suitability of our generally applicable scope
of employment standard, and its course of employment synonym, for flexible application to
a wide variety of case-specific fact patterns does not render it “difficult to apply,” whether
by the trier of fact or by the court as a matter of law in accordance with the clear and concise
evidentiary standard set forth in Fed. R. Civ. P. 56 or M. R. Civ. P 56, as applicable. Like
other ultimate legal standards of general applicability, the course or scope of employment
standard has definite and consistent meaning when properly viewed and applied as a
function of the well settled legal standards that go with it. Courts may then easily apply
those standards to the particular facts and circumstances of a particular case as a matter of
law where, as here, the Rule 56 factual record manifests no genuine issue of material fact
on an essential element of factual proof.3
3
Under M. R. App. P. 15(3), the pertinent evidentiary record here narrowly consists of the
stipulated facts stated in the Ninth Circuit’s certified question which directly derive from and are
coextensive with the underlying Fed. R. Civ. P. 56 factual record in L.B. v. United States, No.
CV-18-74-BLG-SPW (D. Mont. Aug. 28, 2019), and the underlying L.B. v. United States, No.
23
¶30 Even prior to 1940, we recognized that the traditional common law course or scope
of employment standard of vicarious employer liability was “well settled in this state.”
Staff v. Mont. Petroleum Co.,

88 Mont. 145

, 153-54,

291 P. 1042

, 1045 (1930) (citing
Ellinghouse, 51 Mont. at 285; 152 P. at 485). In that regard, the overarching legal standard
or test for whether an employee committed or engaged in the tortious conduct at issue
(regardless of whether negligent, willful, malicious, or criminal) while acting within the
course or scope of his or her employment is whether the subject act or conduct was “either
expressly or implicitly authorized by the employer” or, if not, whether the employee
nonetheless performed or engaged in the unauthorized act or conduct “incidental to the
performance of an expressly or implicitly authorized act” and was “at least partially
motivated by the employee’s intent or purpose to serve the employer’s interest.” Brenden,
¶¶ 14 and 16 (citing Kornec,

180 P.2d at 256-57

; Keller, 111 Mont. at
36-40, 108 P.2d at 610-12; Restatement (Third) of Agency § 7.07(2) cmt. b; Restatement
(Second) of Agency §§ 228(1)(a), (c), and 229(1) (Am. Law Inst. 1958)—emphasis added).
Accord Harrington,

97 Mont. at 59-62

33 P.2d at 558-59

; Hoffman, 61 Mont. at 298-300,
203 P. at 350-51; Kirk, 56 Mont. at 297-98, 184 P. at 988; Ellinghouse, 51 Mont. at 285-89,
152 P. at 485-86. See also Restatement (Third) of Agency § 2.04 cmt. a and § 7.07(2)
(including cmts. b-c); Restatement (Second) of Agency §§ 228(1)(c), (2), 229, and 235;
Restatement (First) of Agency §§ 228, 229, and 235 (Am. Law Inst. 1933). Depending
CV 18-74-BLG-SPW-TJC (D. Mont. July 16, 2019). See L.B. v. United States,

8 F.4th 868

,
869-70 (9th Cir. 2021).
24
upon the circumstances, the scope of unauthorized tortious acts for which an employer may
be vicariously liable may include not only negligent conduct but that which is willful,
malicious, and even criminal. Brenden, ¶ 16 (citing Kornec,

120 Mont. at 7-8

; Keller, 111 Mont. at 38, 108 P.2d at 611).
¶31    The first prong of the test for whether an employee committed or engaged in a
particular unauthorized act or type of conduct within the scope or course of his or her
employment—i.e., whether he or she committed or engaged in the unauthorized act or
conduct incidental to an expressly or implicitly authorized act or conduct—requires proof
that the unauthorized act or conduct both “arose out of” and was “closely related to,” or
“intermingled with,” the “performance of an expressly or implicitly authorized act or
function.” Brenden, ¶¶ 16 and 27 (citing Kornec,

180 P.2d at 256-57

;
Keller, 111 Mont. at 40, 108 P.2d at 612—internal punctuation omitted and emphasis
added); Keller, 111 Mont. at 40, 108 P.2d at 612 (noting existence of a genuine issue of
material fact as to whether the subject employee conduct was “so closely intermingled with
the employment [the employee] was . . . authorized to do”—emphasis added). Thus, an
authorized act or conduct may have been committed or engaged in incidental to an
authorized act “even [if] an entirely different kind of an act.” Brenden, ¶ 16 (quoting
Restatement (Second) of Agency § 229 cmt. b—internal punctuation omitted). Factual
considerations relevant to whether an unauthorized employee act or conduct was
committed or occurred incidental to (i.e., arose out of and was closely related to or
intermingled with) an expressly or implicitly authorized act or conduct include, inter alia:
25
(1)     “whether or not the act is one commonly done by such servants”;
(2)     “the time, place[,] and purpose of the act”;
(3)     “the previous relations between the master and the servant”;
(4)     “whether . . . the act is outside the enterprise of the master”;
(5)     “the similarity in quality of the act done to the act authorized”;
(6)     “the extent of departure from the normal method of accomplishing an
authorized result”; and
(7)     “whether or not the act is seriously criminal.”
Restatement (Second) of Agency § 229(2)(a)-(c), (e), (g), and (i)-(j). See also Keller, 111
Mont. at 36-37, 108 P.2d at 610 (quoting Restatement (First) of Agency § 229(1), (2)(a),
(b), (f), and (i)).4
¶32     The second prong of the test for whether an unauthorized employee act or conduct
was committed or engaged in within the course or scope of the subject employment
requires proof by direct or circumstantial evidence that the employee performed or engaged
in the unauthorized tortious act or conduct at least in part with a motive or purpose to serve
or further the employer’s interest. Brenden, ¶ 16 (citing Kornec,

180 P.2d at 256-57

; Keller, 111 Mont. at 36-40, 108 P.2d at 610-12; Restatement (Third) of
4
Other relevant factors depending upon the circumstances at issue in a particular case include,
inter alia, “the extent to which the business of the master is apportioned between different
servants,” whether the master has “entrusted [the act] to any servant” if “within the [master’s]
enterprise,” whether “the master has reason to expect that such an act will be done,” and whether
“the instrumentality by which the harm is done has been furnished by the master to the servant.”
Restatement (Second) of Agency § 229(2)(d)-(e), (f), and (h). Note further that Restatement (First)
of Agency § 229 is identical to Restatement (Second) of Agency § 229 and, as stated in its
Reporter’s Note a, Restatement (Third) of Agency § 7.07 “is a consolidated treatment of topics
covered in several separate sections of Restatement Second of Agency” including §§ 228, 229,
and 235, inter alia.
26
Agency § 7.07(2) cmt. b; Restatement (Second) of Agency §§ 228(1), (c), and 229(1)).
Accord Kornec,

120 Mont. at 11

(holding that sufficient evidence was
present to support a jury finding that the subject unauthorized tortious act was committed
by the employee “while engaged in his master’s business and in furtherance of [the
master’s] business and . . . interest”—emphasis added); Kirk, 56 Mont. at 298, 184 P. at
988 (“[t]he tort of an agent is within the course of his employment where the agent, in
performing it, is endeavoring to promote the principal’s business”—quoting 2 Corpus Juris
853, as later quoted in Keller, 111 Mont. at 39, 108 P.2d at 611); Ellinghouse, 51 Mont. at
288, 152 P. at 485 (ultimate question in whether subject employee was “acting within the
scope of the[] employment” is whether “he [was] acting in furtherance of his master’s
business”—emphasis added). In other words, the second prong of the test for whether the
unauthorized act or conduct of an employee was performed or occurred within the course
or scope of the subject employment requires direct or circumstantial proof that the
employee “at least partially intended” the unauthorized tortious act or conduct “as a means
to accomplish” an expressly or implicitly authorized task, purpose, or function. Brenden,
¶ 27 (citing Keller, 111 Mont. at 40, 108 P.2d at 612—emphasis added). Accord W. Page
Keeton, et al., Prosser & Keeton on Torts § 70, 503 (5th ed. 1984) (“no matter how
specific, detailed, and emphatic” the employer’s instructions “have been to the contrary”
the employer is vicariously liable if the circumstances indicate that the unauthorized act or
conduct was “merely the servant’s own way of accomplishing an authorized purpose”). A
“dual or mixed motive” or purpose for engaging in the unauthorized act or conduct at issue
thus does not preclude a finding that the unauthorized act or conduct was committed or
27
occurred within the course or scope of the subject employment. Brenden, ¶¶ 17-18
(internal citations omitted). The fact that the employee’s “predominant motive” or purpose
may have been to further his or her own independent self-interest does not preclude a
finding that the unauthorized act or conduct of an employee was performed or occurred
within the scope or course of the subject employment as long as there is sufficient evidence
upon which to reasonably conclude that the employee at least partially intended the
unauthorized tortious act or conduct as a means to accomplish an expressly or implicitly
authorized task, purpose, or function. Brenden, ¶ 17 (internal citations omitted). See also
Kornec,

120 Mont. at 11

(holding that sufficient evidence was present to
support a jury finding that employee assaulted the third party “in furtherance of”
accomplishing the authorized task).
¶33 In contrast, however, independent acts or conduct “not intended” by the employee
“to serve any purpose of the employer” are not within the course of his or her employment.
Brenden, ¶¶ 17-18 (citing Restatement (Third) of Agency § 7.07(2) cmt. b; Keller, 111
Mont. at 37-38, 108 P.2d at 611). An employee’s “personal motive[]” or purpose takes the
tortious act beyond the scope of employment where it is clear that the employee “could not
have been directly or indirectly serving his master” in any regard. Keller, 111 Mont. at
37-38, 108 P.2d at 611 (emphasis added).
If the servant steps outside of his employment to do some act for himself, not
connected with the master’s business, there is no more responsibility for what
he does than for the acts of a stranger. If he has no intention, not even in
part, to perform [that act] for the employer, but intends only to further a
personal end, his act is not within the scope of the employment. . . . [I]f he
acts from purely personal motives, . . . he is considered . . . to have departed
28
from his employment, and the master is not liable . . . unless some
non-delegable duty [applies].
W. Page Keeton, et al., Prosser & Keeton on Torts § 70, 503 and 505-07 (5th ed. 1984)
(emphasis added).
When an employee commits a tort with the sole intention of furthering the
employee’s own purposes, and not any purpose of the employer, it is neither
fair nor true-to-life to characterize the employee’s action as that of a
representative 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.
Restatement (Third) of Agency § 7.07 cmt. b. Accord Kornec,

120 Mont. at 8