dissenting.
I agree with the lead opinion that plaintiff’s status as an invitee or licensee has no bearing on defendant’s liability. The sole issue is whether there is evidence that it was foreseeable that, if defendant failed to restrain his dog, the dog would charge and knock someone down. In this case, the lead opinion concludes that there was such evidence. On that point, I disagree.
Newport v. Moran, 80 Or App 71, 721 P2d 465, rev den, 302 Or 35 (1986), is — excuse the pun — on all fours. In that case, the plaintiff was injured when her next-door neighbor’s dog, Rowdy, ran into her. Id. at 73. Rowdy was “very friendly and energetic and often engaged in rough play with [the] plaintiffs dog.” Id. The plaintiff was even somewhat “nervous around the energetic Rowdy” and carried a stick to ward him off when she was outside. Id. The jury returned a verdict for the plaintiff, and we reversed, holding that the evidence was insufficient to demonstrate that the defendant had reason to know that Rowdy would charge and knock anyone down if unrestrained. Id. at 74-75. We concluded that there was no evidence that Rowdy was vicious or “that he had ever run into or injured any person before [the] plaintiff was injured.” Id. at 73.
In this case, as in Newport, defendant’s dog was apparently very energetic. Likewise, in this case, as in Newport, defendant’s dog was known to engage in “rambunctious” play with the neighbor’s dog. And, in this case, as in Newport, there is no evidence that defendant’s dog was vicious or that he had ever run into or injured another person before plaintiff was injured. It necessarily follows that, if the evidence was insufficient in Newport, the same evidence is insufficient in this case.
The lead opinion insists that Newport is distinguishable because neither the defendant nor the plaintiff in that *80case expected Rowdy to behave as he did. But that is nothing more than a conclusion, not an explanation of how this case is materially different.
If the lead opinion believes Newport to have been wrongly decided, then it should say so. But, if Newport is still good law, then the trial court correctly concluded that the evidence in this case was insufficient, and the majority errs in concluding otherwise.