LISA M., Plaintiff and Appellant, v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL, Defendant and Respondent, 12 Cal. 4th 291

Opinion WERDEGAR, J. Plaintiff Lisa M. was injured in a fall and sought treatment at defendant Henry Mayo Newhall Memorial Hospital (Hospital). Under the pretense of conducting an ultrasound imaging examination, a technician sexually molested her. In plaintiff’s action against Hospital and others, the trial court granted

summary judgment in favor of Hospital; the Court of Appeal reversed. The question presented is whether Hospital, even if not negligent in employing or supervising the technician, may be held vicariously liable for his misconduct under the doctrine of respondeat superior. We conclude the undisputed facts show Hospital is not vicariously liable. Facts and Procedural Background The facts are taken largely from the declarations and depositions submitted in support of and opposition to Hospital’s motion for

summary judgment. Some undisputed facts are taken from the parties’ separate statements of undisputed facts. (Code Civ. Proc., § 437c, subd. (b).) On July 9, 1989, plaintiff, 19 years old and pregnant, was injured in a fall at a movie theater and sought treatment at Hospital’s emergency room. At the direction of the examining physicians, ultrasound technician Bruce Wayne Tripoli performed obstetrical and upper-right-quadrant ultrasonic imaging examinations. Tripoli took plaintiff to the ultrasound room on a gurney. She remained in her street clothes, shorts and a maternity top.

No one else was present during the examination; plaintiff had asked that her boyfriend accompany her, but Tripoli refused the request, as was his practice in conducting emergency obstetrical examinations. Tripoli turned out the room lights but left the adjacent bathroom door ajar to admit dim light. Tripoli first conducted the prescribed examinations. Plaintiff pulled up her shirt and pushed her shorts down to expose the area to be examined. The obstetrical or “general pelvic” examination requires passing an ultrasound-generating wand across the patient’s lower abdomen.

The sound waves must be mediated by a gel, which Tripoli testified must be worked into the skin somewhat to displace all the air. The exact placement and movement of the wand varies with the patient’s body type, and on some patients the best images are obtained by passing the wand as much as an inch below the pubic hairline. Tripoli found it necessary to do so in plaintiff’s case. In performing the upper right quadrant examination (to see the liver), Tripoli had to lift plaintiff’s right breast, which he did through a towel with the back of his hand.

After conducting the ordered examinations, Tripoli left the room for about 10 minutes to develop the photographic results. On his return, Tripoli asked plaintiff if she wanted to know the sex of the baby, and she said she did. He told her, falsely, that to determine the sex he would need to scan “much further down,” and it would be uncomfortable. With plaintiff’s cooperation, Tripoli pulled plaintiff’s shorts down and began to scan in her pubic hair. According to plaintiff, he also inserted the wand in her vagina. After a while he put down the wand and fondled plaintiff with his fingers.

Plaintiff testified he moved his fingers “around everywhere down there.” While fondling plaintiff, Tripoli said he needed to excite her to get a good view of the baby. Plaintiff found the touching uncomfortable, but Tripoli testified he thought she was getting pleasure from it because she said it tickled. Tripoli eventually stopped molesting plaintiff and returned her to the emergency room.

At the time of the misconduct, plaintiff thought it was part of a “regular procedure,” albeit “kind of weird.” Later that day, however, she began to suspect Tripoli’s actions were improper, a suspicion confirmed the next morning when she talked to her regular obstetrician. Tripoli was criminally prosecuted and pleaded no contest to a felony charge arising out of his molestation of plaintiff. Plaintiff’s suit named Tripoli, Hospital and others as defendants, and contained causes of action for professional negligence, battery and intentional and negligent infliction of emotional harm.

In opposition to Hospital’s motion for

summary judgment, plaintiff maintained triable issues of fact existed as to whether Hospital was vicariously liable for the battery as a tort committed within the scope of Tripoli’s employment, or was directly liable for its own negligence in failing to have a third person present during the examination. The superior court granted the

summary judgment motion, rejecting both arguments. The Court of Appeal reversed. The court relied only on the theory of respondeat superior and expressly declined to reach the question of Hospital’s negligence. We granted Hospital’s petition for review in order to decide the vicarious liability question. Discussion I. Review of Pertinent Law on Respondeat Superior The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Perez v.

Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 [227 Cal.Rptr. 106, 719 P.2d 676].) Equally well established, if somewhat surprising on first encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 [285 Cal.Rptr. 99, 814 P.2d 1341]; John R. v.

Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 [256 Cal.Rptr. 766, 769 P.2d 948]; Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 654 [171 P.2d 5].) What, then, is the connection required between an employee’s intentional tort and his or her work so that the employer may be held vicariously liable?

It is clear, first of all, that California no longer follows the traditional rule that an employee’s actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer’s interests. (See Rest.2d Agency, § 228, subd. 1(c) [conduct must be “actuated, at least in part, by a purpose to serve the master”].) Our departure from that limiting rule dates at least from the leading case of Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652.

In Carr, this court held a building contractor liable for injuries caused when an employee, angry at a subcontractor’s employee for interfering in his work, threw a hammer at the other worker’s head.

We rejected the defendant’s claim its employee was not acting within the scope of employment because he “could not have intended by his conduct to further” the employer’s interests: “It is sufficient, however, if the injury resulted from a dispute arising out of the employment. ... ‘It is not necessary that the assault should have been made “as a means, or for the purpose of performing the work he (the employee) was employed to do.”'” (28 Cal.2d at p. 654, quoting Hiroshima v. Pacific Gas & Elec. Co. (1936) 18 Cal.App.2d 24, 28 [63 P.2d 340], italics added; accord, Fields v.

Sanders (1947) 29 Cal.2d 834, 839 [180 P.2d 684, 172 A.L.R. 525] [that tortious act “was not committed in order to further the interests of the principal” does not preclude vicarious liability]; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 969 [“The plaintiff need not demonstrate that the assault was committed for the purpose of accomplishing the employee’s assigned tasks.”]; Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d at p. 621 [“[T]he ‘motive test,’ though still the ‘majority rule,’ has been abandoned in California.”].) While the employee thus need not have intended to further the employer’s interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work. This rule, too, can be traced to Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652.

There the court acknowledged that “[i]f an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable.” (Id. at p. 656, italics added.) We further explained that in the case under consideration the attack was, indeed, “an outgrowth” of the employee’s work: “Not only did the altercation leading to the injury arise solely over the performance of [the employee’s] duties, but his entire association with plaintiff arose out of his employment on the building under construction.” (Id. at p. 657.) In Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d 608, 614-616, off-duty employees, who had been drinking beer at the jobsite, assaulted workers for another contractor after requesting and being refused a ride on a bulldozer driven by one of the victims. Applying the analysis developed in Carr v. Wm. C. Crowell Co., supra, the Court of Appeal found substantial evidence the attack—in which the victims were seriously injured and permanently disabled—was within the scope of the assailants’ employment.

The assailants and victims, the court noted, were “complete strangers” until their work brought them together; thus the dispute could not have derived from “personal malice unrelated to the employment.” (50 Cal.App.3d at p. 621.) Rather, a work-related dispute was the “proximate cause” of the attack. (Ibid.) Because an intentional tort gives rise to respondeat superior liability only if it was engendered by the employment, our disavowal of motive as a singular test of respondeat superior liability does not mean the employee’s motive is irrelevant.

An act serving only the employee’s personal interest is less likely to arise from or be engendered by the employment than

an act that, even if misguided, was intended to serve the employer in some way. The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from “but for” causation. That the employment brought tortfeasor and victim together in time and place is not enough. We have used varied language to describe the nature of the required additional link (which, in theory, is the same for intentional and negligent torts): the incident leading to injury must be an “outgrowth” of the employment (Carr v. Wm. C.

Crowell Co., supra, 28 Cal.2d 652, 657); the risk of tortious injury must be “ ‘inherent in the working environment’ ” (id. at p. 656) or “ ‘typical of or broadly incidental to the enterprise [the employer] has undertaken’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960 [88 Cal.Rptr. 188, 471 P.2d 988]). Looking at the matter with a slightly different focus, California courts have also asked whether the tort was, in a general way, foreseeable from the employee’s duties.

Respondeat superior liability should apply only to the types of injuries that “ ‘as a practical matter are sure to occur in the conduct of the employer’s enterprise.’ ” (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 959.) The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought. In what has proved an influential formulation, the court in Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d at page 618, held the tortious occurrence must be “a generally foreseeable consequence of the activity.” In this usage, the court further explained, foreseeability “merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Id. at p. 619; accord, John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at p. 450, fn. 9; Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968; Martinez v.

Hagopian (1986) 182 Cal.App.3d 1223, 1228 [227 Cal.Rptr. 763]; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 141-142 [176 Cal.Rptr. 287].) The Rodgers foreseeability test is useful “because it reflects the central justification for respondeat superior [liability]: that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.” (Farmers Ins. Group v.

County of Santa Clara (1995) 11 Cal.4th 992, 1004 [47 Cal.Rptr.2d 478, 906 P.2d 440].) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 213.) Neither plaintiff nor Hospital has pointed to factual disputes that would prevent us in this case from deciding the applicability of respondeat superior as a matter of law. II.

Application to This Case Was Tripoli’s sexual battery of Lisa M. within the scope of his employment? The injurious events were causally related to Tripoli’s employment as an ultrasound technician in the sense they would not have occurred had he not been so employed. Tripoli’s employment as an ultrasound technician provided the opportunity for him to meet plaintiff and to be alone with her in circumstances making the assault possible. The employment was thus one necessary cause of the ensuing tort.

But, as previously discussed, in addition to such “but for” causation, respondeat superior liability requires the risk of the tort to have been engendered by, “typical of or broadly incidental to,” or, viewed from a somewhat different perspective, “a generally foreseeable consequence of,” Hospital’s enterprise. (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960; Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d at p. 618.) At the broadest level, Hospital argues sex crimes are never foreseeable outgrowths of employment because they, unlike instances of nonsexual violence, are not the product of “normal human traits.” Hospital urges us not to “legitimize” sexual misconduct by treating it on a par with mere fights. These generalized distinctions are not, however, compelling. Neither physical violence nor sexual exploitation is legitimate, excusable or routinely expected in the workplace. In Carr v. Wm. C.

Crowell Co., supra, 28 Cal.2d 652, this court did not “legitimize” the act of the construction worker who, on trivial provocation, threw a carpenter’s hammer at the plaintiff, “striking him on the head and seriously injuring him” (id. at p. 653), any more than we excused, condoned or otherwise “legitimized” a police officer’s forcible rape of a detainee in Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202. Nor did the Court of Appeal in Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d 608, 615-616, indicate any inclination to approve of or excuse the intoxicated off-duty workers’ brutal attack on two other workers— kicking and beating them with fists, rocks and a hardhat, rendering one unconscious and permanently injuring the other’s eyesight. The references in certain cases to “ ‘the faults and derelictions of human beings’ ” (Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d at p. 656) and “normal human traits” (Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d at p. 622) thus must be taken in context to include not only minor character flaws, but also the human tendency toward malice and viciousness. We are not persuaded that the roots of sexual violence and exploitation are in all cases so fundamentally different from those other abhorrent human traits as to allow a conclusion sexual misconduct is per se unforeseeable in the workplace. Focusing more specifically on the type of sexual assault occurring here, we ask first whether the technician’s acts were “engendered by” or an “outgrowth” of his employment. (Carr v. Wm. C.

Crowell Co., supra, 28 Cal.2d at pp. 656-657.) They were not. Nonsexual assaults that were not committed to further the employer’s interests have been considered outgrowths of employment if they originated in a work-related dispute. (E.g., Fields v. Sanders, supra, 29 Cal.2d at pp. 839-840 [employee truck driver’s assault on another motorist following dispute over employee’s driving]; see, generally, Farmers Ins. Group v.

County of Santa Clara, supra, 11 Cal.4th 992, 1006.) “Conversely, vicarious liability [has been] deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute (e.g., Monty v. Orlandi (1959) 169 Cal.App.2d 620, 624 [337 P.2d 861] [bar owner not vicariously liable where on-duty bartender assaulted plaintiff in the course of a personal dispute with his common law wife]), or is the result of a personal compulsion (e.g., Thorn v.

City of Glendale (1994) 28 Cal.App.4th 1379, 1383 [35 Cal.Rptr.2d 1] [city not vicariously liable where fire marshal set business premises on fire during an inspection].)” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th 992, 1006.) As with these nonsexual assaults, a sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. Here the opposite was true: a technician simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work.

Tripoli’s job was to perform a diagnostic examination and record the results. The task provided no occasion for a work-related dispute or any other work-related emotional involvement with the patient. The technician’s decision to engage in conscious exploitation of the patient did not arise out o/the performance of the examination, although the circumstances of the examination made it possible. “If... the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.” (Lyon v. Carey (D.C.

Cir. 1976) 533 F.2d 649, 655 [174 App.D.C. 422].) Our conclusion does not rest on mechanical application of a motivation-to-serve test for intentional torts, which would bar vicarious liability for virtually all sexual misconduct. (See ante, p. 297.) Tripoli’s criminal actions were, of course, unauthorized by Hospital and were not motivated by any desire to serve Hospital’s interests. Beyond that, however, his motivating emotions were not causally attributable to his employment.

The flaw in plaintiff’s case for Hospital’s respondeat superior liability is not so much that Tripoli’s actions were personally motivated, but that those personal motivations were not generated by or an outgrowth of workplace responsibilities, conditions or events. Analysis in terms of foreseeability leads to the same conclusion.

An intentional tort is foreseeable, for purposes of respondeat superior, only if “in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 619, italics added.) The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed.

The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought. In arguing Tripoli’s misconduct was generally foreseeable, plaintiff emphasizes the physically intimate nature of the work Tripoli was employed to perform. In our view, that a job involves physical contact is, by itself, an insufficient basis on which to impose vicarious liability for a sexual assault. (Accord, Boykin v.

District of Columbia (App.D.C. 1984) 484 A.2d 560, 562 “[[T]hat physical touching was necessarily a part of the teacher-student relationship” held insufficient to impose liability on employer for teacher’s molestation of deaf and blind student, who could be taught only through touch.].) To hold medical care providers strictly liable for deliberate sexual assaults by every employee whose duties include examining or touching patients’ otherwise private areas would be virtually to remove scope of employment as a limitation on providers’ vicarious liability.

In cases like the present one, a deliberate sexual assault is fairly attributed not to any peculiar aspect of the health care enterprise, but only to “propinquity and lust” (Lyon v. Carey, supra, 533 F.2d 649, 655). Here, there is no evidence of emotional involvement, either mutual or unilateral, arising from the medical relationship. Although the procedure ordered involved physical contact, it was not of a type that would be expected to, or actually did, give rise to intense emotions on either side.

We deal here not with a physician or therapist who becomes sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship (see, e.g., Simmons v. United States (9th Cir. 1986) 805 F.2d 1363, 1369-1370; Doe v. Samaritan Counseling Center (Alaska 1990) 791 P.2d 344, 348-349), but with an ultrasound technician who simply took advantage of solitude, access and superior knowledge to commit a sexual assault.

Although the routine examination Tripoli was authorized to conduct involved physical contact with Lisa M., Tripoli’s assault on plaintiff did not originate with, and was not a generally foreseeable consequence of, that contact. Nothing happened during the course of the prescribed examinations to provoke or encourage Tripoli’s improper touching of plaintiff. (See Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 141 [contrasting assault cases, in which a work-related quarrel preceded the assault, with school custodian’s rape of student, which was held unrelated to custodian’s duties]; Wiersma v.

City of Long Beach (1940) 41 Cal.App.2d 8, 11, 15 [106 P.2d 45] [producer of wrestling exhibition not vicariously liable for injuries caused by wrestler who “suddenly and, apparently without provocation,” attacked spectator].) The assault, rather, was the independent product of Tripoli’s aberrant decision to engage in conduct unrelated to his duties. In the pertinent sense, therefore, Tripoli’s actions were not foreseeable from the nature of the work he was employed to perform. Plaintiff contends the battery in this case, like the police officer’s rape of a detainee in Mary M. v.

City of Los Angeles, supra, 54 Cal.3d 202, “arose from an abuse of job-created authority.” More accurately, Tripoli abused his position of trust, since he had no legal or coercive authority over plaintiff. Assuming an analogy can be fully maintained between authority and trust, Mary M. still provides less than compelling precedent for liability here.

In Mary M., we held a police officer’s assault was a generally foreseeable consequence of his position. “In view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct.” (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 217.) We expressly limited our holding: “We stress that our conclusion in this case flows from the unique authority vested in police officers.

Employees who do not have this authority and who commit sexual assaults may be acting outside the scope of their employment as a matter of law.” (Id. at p. 218, fn. 11.) While a police officer’s assault may be foreseeable from the scope of his unique authority over detainees, we are unable to say the same of an ultrasound technician’s assault on a patient. Hospital did not give Tripoli any power to exercise general control over plaintiff’s liberty. He was not vested with any coercive authority, and the trust plaintiff was asked to place in him was limited to conduct of an ultrasound examination.

His subsequent battery of the patient was independent of the narrow purpose for which plaintiff was asked to trust him. Whatever costs may be fairly attributable to a police officer’s public employer in light of the extraordinary scope of authority the community, for its own benefit, confers on the officer, we believe it would not be fair to attribute to Hospital, which employed Tripoli simply to conduct ultrasound examinations, the costs of a deliberate, independently motivated sexual battery unconnected to the prescribed examination.

In reaching our conclusion we have consulted the three identified policy goals of the respondeat superior doctrine—preventing future injuries, assuring compensation to victims, and spreading the losses caused by an enterprise equitably—for additional guidance as to whether the doctrine should be applied in these circumstances. (See Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 209, 214-217; John R. v. Oakland Unified School Dist., supra, 48 Cal.3d at pp. 451-452.) In this case, however, we have drawn no firm direction from consideration of the first two policy goals.

Although imposition of vicarious liability would likely lead to adoption of some further precautionary measures, we are unable to say whether the overall impact would be beneficial to or destructive of the quality of medical care. Hospital and its amici curiae predict imposition of respondeat superior liability would lead health care providers to overreact by monitoring, for possible sexual misconduct, every interaction between patient and health care worker. Published research, on the other hand, indicates providers have available several other approaches to preventing sexual misconduct by employees.

As for ensuring compensation, the briefing does not enable us to say with confidence whether or not insurance is actually available to medical providers for sexual torts of employees and, if so, whether coverage for such liability would drastically increase the insurance costs—or, if not, the uninsured liability costs—of nonprofit providers such as Hospital. The second policy consideration is therefore also of uncertain import here; imposing vicarious liability is likely to provide additional compensation to some victims, but the consequential costs of ensuring compensation in this manner are unclear.

Third and finally, we attempt to assess the propriety of spreading the risk of losses among the beneficiaries of the enterprise upon which liability would be imposed. As Hospital points out, this assessment is another way of asking whether the employee’s conduct was “so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Rodgers v. Kemper Constr.

Co., supra, 50 Cal.App.3d at p. 619.) For reasons already discussed, we conclude the connection between Tripoli’s employment duties—to conduct a diagnostic examination—and his independent commission of a deliberate sexual assault was too attenuated, without proof of Hospital’s negligence, to support allocation of plaintiff’s losses to Hospital as a cost of doing business.

Consideration of the respondeat superior doctrine’s basis in public policy, therefore, does not alter our conviction that an ultrasound technician’s sexual assault on a patient is not a risk predictably created by or fairly attributed to the nature of the technician’s employment. Although, as we have concluded, Tripoli’s criminal acts were not engendered by or broadly incidental to his work so as to render Hospital vicariously liable, Hospital’s duty of due care to its patient obliged it to take all measures dictated by ordinary prudence to protect against even such unusual sources of injury.

The Court of Appeal declined to decide whether plaintiff’s cause of action for negligence could survive

summary judgment. The court therefore did not decide whether Hospital fulfilled its duty of care under the circumstances nor did it resolve any issue as to the adequacy of, or necessity for, plaintiff’s expert declaration. Consequently, we consider it appropriate to remand the matter to the Court of Appeal for decision in the first instance on plaintiff’s negligence cause of action. Conclusion Hospital employed a technician to conduct ultrasound examinations.

The technician, after completing such an examination of plaintiff, took advantage of plaintiff’s trust and his own superior knowledge to commit on her a deliberate sexual battery. His reasons for doing so did not derive from any events or conditions of his employment, nor were his actions provoked by anything that occurred during the prescribed examination. Hospital, by employing the technician and providing the ultrasound room, may have set the stage for his misconduct, but the script was entirely of his own, independent invention.

For this reason it would be unfair and inconsistent with the basic rationale of respondeat superior to impose liability on Hospital irrespective of its own negligence. The judgment of the Court of Appeal is reversed and the matter is remanded to that court for further proceedings consistent with this opinion. Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.

Tripoli’s deposition testimony was inconsistent as to whether the door to the ultrasound room was open or closed; although he testified he usually left the door slightly open, and did so on this occasion, he also testified the room door’s magnetic latch was not working properly, and the door closed instead of remaining ajar. Civil Code

section 2338, which has been termed a codification of the respondeat superior doctrine (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618, fn. 2 [124 Cal.Rptr. 143]), is not limited to employer and employee but speaks more broadly of agent and principal; it makes the principal liable for negligent and “wrongful” acts committed by the agent “in and as part of the transaction of such [agency] business.” Tripoli was not formally employed by Hospital, but by Mediq Imaging Services, Inc., with which Hospital contracted for his services. Hospital, however, concedes it did not seek

summary judgment on the ground Tripoli was not its employee, did not argue that issue in the Court of Appeal, and does not rely on it in this court. For purposes of reviewing the ruling on

summary judgment, therefore, we will treat Tripoli as Hospital’s employee, without considering or deciding whether Tripoli was Hospital’s nonemployee agent or ostensible agent (see Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 167-168 [41 Cal.Rptr. 577, 397 P.2d 161]) or a special employee for whose torts Hospital is liable under the “borrowed servant” rule (see Societa perAzioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 455-456 [183 Cal.Rptr. 51, 645 P.2d 102]). See also Ira S. Bushey & Sons, Inc. v.

United States (2d Cir. 1968) 398 F.2d 167, 171 (discussing “inadequacy” of the motivation-to-serve test generally); LeGrand & Leonard, Civil Suits for Sexual Assault: Compensating Rape Victims (1979) 8 Golden Gate L.Rev. 479, 507 (the “motive-benefit” test, which would preclude respondeat superior liability for most sexual assaults, has been “abandoned” in California).

The distinction is reflected in the common meaning of “engender”: “to bring into being.” (Webster’s New World Diet. (3d college ed. 1991) p. 450.) Because we do not apply a motivation-to-serve test as the sole standard of vicarious liability, our rationale differs from that of most other courts that have considered factually similar cases, although several courts have reached the same result as we do: sexual assault by a medical technician is not within the scope of employment. (Compare Hendley v.

Springhill Memorial Hosp. (Ala. 1990) 575 So.2d 547, 551 [technician “ ‘acted from wholly personal motives’ ”], Mataxas v. North Shore University Hosp. (1995) 211 A.D.2d 762 [621 N.Y.S.2d 683, 684] [radiology technician’s molestation of patient “committed ... for purely personal motives”], and Taylor v. Doctors Hosp. (West) (1985) 21 Ohio App.3d 154 [486 N.E.2d 1249, 1251] [radiology orderly’s sexual assault on patient committed “from intensely personal motives” and “in no way served to further or promote the business of the employer-hospital”], with Samuels v.

Southern Baptist Hosp. (La.Ct.App. 1992) 594 So.2d 571, 574 [vicarious liability imposed for rape of patient by nursing assistant] and Siropes v. Heritage House Childrens Ctr. (Ind. 1989) 547 N.E.2d 244, 249-250 [same for molestation of disabled child by nurse’s aide].) We

part company at this point with the dissenting justices, who would hold

summary judgment improper because either the patient’s vulnerability or the intimate physical contact inherent in the examination might have encouraged or incited Tripoli to assault her. On the present record, such inferences would be wholly speculative. Lacking evidence the assault was a product of the therapeutic relationship, to impose vicarious liability on a hospital for a technician’s deliberate sexual assault on a patient would stretch the rationale of respondeat superior too far.

To do so would make the hospital potentially liable, irrespective of its actual fault, whenever an employee used force, coercion or trickery to exploit criminally a patient’s physical or psychological vulnerability, vulnerability that is characteristic of hospitalized patients generally.

An analysis that, in the field of health care, deems a conscious sexual assault to have arisen from the employment simply because the patient involved was vulnerable, surrendered his or her privacy or submitted to physical contact unusual for strangers in a nonmedical context, would, in effect, expose health care providers to potential liability without fault for sexual assault by virtually any employee on any patient.

The American Medical Association has described and distinguished two broad types of sexual misconduct by physicians: first, misconduct arising from the physician’s inability properly to contain and control his or her emotional involvement with the patient; and second, conscious exploitation of the physician’s status, knowledge and power to coerce or trick the patient into allowing sexual contact. (American Medical Association, Council on Ethical and Judicial Affairs, Council Rep., Sexual Misconduct in the Practice of Medicine (1991) 266 JAMA 2741-2742.) Tripoli, of course, was a technician rather than a physician.

In any event, his conduct belongs in the second category—conscious exploitation—and we need not decide here whether sexual misconduct of the first type might, under some circumstances, create respondeat superior liability on the employer’s part.

See Jorgenson, Employer I Supervisor Liability and Risk Management, in Breach of Trust: Sexual Exploitation by Health Care Professionals and Clergy (Gonsiorek edit. 1995) pages 296-297; Schoener, Liability and Risk: An Administrator’s View, in id. at pages 305-315; American Medical Association, Council on Ethical and Judicial Affairs, supra, 266 JAMA at pages 2744-2745; Plaut et al., Roles of the Health Professional in Cases Involving Sexual Exploitation of Patients, in Sexual Exploitation of Patients by Health Professionals (Burgess et al. edit, 1986) pages 20-23.

Whether a health care professional’s sexual misconduct is covered under the professional’s malpractice policy is “a much litigated issue,” depending in part on the exact factual relationship between the misconduct and the professional services for which the professional was engaged. (Louisell & Williams, 4 Medical Malpractice (1994) § 20.03[1], p. 20-36.) But even where the misconduct is not sufficiently related to the provision of professional services to be covered under malpractice insurance, the hospital or other institutional provider may be covered for its vicarious liability under a commercial general liability policy. (Id., § 20.01, p. 20-11.) Neither Insurance Code

section 533 nor related policy exclusions for intentionally caused injury or damage preclude a California insurer from indemnifying an employer held vicariously liable for an employee’s willful acts. (Arenson v. Nat. Automobile & Cas. Ins. Co. (1955) 45 Cal.2d 81, 83-84 [286 P.2d 816]; Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 1000-1001 [216 Cal.Rptr. 796].)