dissenting.
This is a difficult and provocative case. Nothing touching on Fazzolari is easy, see, e.g., Bertram v. Malheur County, 204 Or App 129, 129 P3d 222 (2006), and the concurring judges have striven admirably. Nevertheless, the concurrence’s analysis, especially with respect to “intervening” causation, cannot be squared with Fazzolari, with implications far transcending the present dispute. Accordingly, I respectfully dissent.
My concerns are both legal and practical. As a legal matter, as I understand the concurring opinion’s core holding, the mere transfer of ownership and exercise of control over a negligently maintained vehicle operates as an “intervening cause,” relieving the seller/prior owner of any liability for the consequences of that negligence.1 That is so (1) even if *124the subsequent accident/injury is precisely the sort that would be expected to flow from the negligent maintenance; and (2) regardless of whether the seller disclosed the defective/negligently maintained condition of the vehicle to the buyer, or the buyer was otherwise reasonably alerted to that condition.
Thus, under the concurrence’s reasoning, even though the accident may be the quintessentially reasonably foreseeable product of the negligent nonmaintenance, the buyer’s passive failure to remedy the continuing consequences of the seller’s negligence constitutes “intervening cause,” effectively immunizing the negligent seller, even when the buyer does not know of that condition. In other words, the buyer’s failure to remedy an antecedent “defect” is deemed to cut off the chain of reasonably foreseeable causation, excusing the original, incontrovertible negligence, merely because the vehicle was sold.
Such an expansive view of “intervening” (or “superseding”) 2 causation is unprecedented. Certainly, Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993), which the concurrence invokes, does not suggest that the concept is so pliable.
Rather, the law of superseding causation is to the contrary. The applicable legal principles are summarized in sections 440 to 453 of the Restatement (Second) of Torts. Particularly pertinent is section 442B:
*125“Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm, is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.”
(Emphasis added.) Thus, as a matter of law, nonintentional tortious conduct (e.g., active or passive negligence) cannot be deemed superseding cause. Instead, there can be no preclusion of the original actor’s tort liability for reasonably foreseeable harm unless, as in Buckler, there is intentional conduct that gives rise to a harm “not within the scope of the risk created by the actor’s conduct.” See also Restatement at § 442B comment c (addressing application of exception for “[i]ntentionally tortious or criminal acts”).
Here, there can be no question that the accident that injured plaintiff was within the reasonably foreseeable “scope of the risk created by [defendant’s] conduct.” An accident resulting from axle failure is the quintessential reasonably foreseeable consequence of negligent nonmaintenance of a truck’s axles.3 That alone renders superseding cause inapposite to this case. Further, and in all events, nothing in the pleadings discloses intentionally tortious or criminal conduct by the subsequent actors. In sum, the pleadings here do not disclose either of the conjunctive requirements for invocation of superseding causation.
The concurrence’s countervailing reliance on Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 83 P3d 322 (2004), is misplaced. Indeed, Oregon Steel Mills, Inc., contradicts the concurrence’s analysis and disposition. In *126Oregon Steel Mills, Inc., the Supreme Court, in analyzing whether the harm for which the plaintiff sought to recover was the reasonably foreseeable consequence of the defendant’s conduct, focused on whether the defendant’s conduct was the “harm-producing force”:
“[I]n this case, [the] defendant’s conduct caused the delay in the offering that led to an ‘unintended adverse result.’ However, the intervening action of market forces on the price of plaintiffs stock was the ‘harm-producing force,’ and defendant’s actions did not ‘cause’ the decline in the stock price so as to support liability for that decline. As a matter of law, the risk of a decline in [the] plaintiffs stock price in June 1996 was not a reasonably foreseeable consequence of [the] defendant’s negligent acts in 1994 and early 1995.”
Id. at 345.
Here, assuming the truth of the pleadings, defendant’s negligence in failing to maintain the axle was the “harm-producing force.” Unlike in Oregon Steel Mills, Inc., where the defendant’s negligent delay merely put the plaintiff in “the wrong place at the wrong time” to be injured by intervening market forces over which the defendant had no control, in this case, the failure of the axle that defendant had negligently failed to maintain caused — there is no more descriptive term — the accident that injured plaintiff. Unlike in Buckler, where the defendant’s negligence in leaving the keys in the van merely facilitated the third party’s independent and qualitatively different superseding criminal conduct, defendant’s negligence here directly precipitated that accident.
A rhetorical question: If an accident involving axle failure had occurred while defendant owned the Kenworth, there would be no question that defendant’s negligent non-maintenance would be deemed the “harm-producing force”— or, at least, that a jury could so find. How or why, then, does the mere change of ownership transmute a “harm-producing force” into a non-“harm-producing force”? Even more, how does the passive failure to rectify defendant’s conduct render it any less “harm-producing”? Neither Oregon Steel Mills, Inc., nor Buckler sanctions, much less compels, such a result.
*127Beyond all of that, even if the court were otherwise inclined to chart a new legal course, the procedural posture precludes outright dismissal. This case is before us on a Rule 21 dismissal, and, except in “bright line” cases YiksBuchler or Oregon Steel Mills, Inc., “foreseeability” is properly committed to the trier of fact — or, at the very least, disposition on that basis should await development of an evidentiary record. See, e.g., Fireman’s Fund v. Pacific Power, 269 Or 421, 432, 525 P2d 157 (1974) (“[T]he question of intervening or superseding cause is ordinarily a question of fact[.]”); Knepper v. Brown, 182 Or App 597, 623, 50 P3d 1209 (2002) (noting that to extend Buckler to intervening, merely negligent conduct “would abrogate the well-established rule that ‘the negligence of a third person is not unforeseeable as a matter of law’ ”) (quoting Becker v. Barbur Blvd. Equipment Rentals, Inc., 81 Or App 648, 653, 726 P2d 967 (1986), rev den, 303 Or 535 (1987)).4
Finally, the concurrence’s “intervening cause” analysis has profound, and incongruous, consequences. A hypothetical:
A, who has never had his 2001 Toyota’s brakes serviced (violating every standard of reasonable conduct), sells his car to B and tells her nothing about the brakes. As B drives the Toyota home from A’s house, the brakes fail, causing B (a notoriously careful driver) to hit C, who is in a crosswalk. C sues A and B for negligence.
C cannot recover against B because she did not breach any standard of care. Nor — if the proposed opinion stands — can C recover against A. The upshot is that, merely because of the sale of the vehicle, the risk of loss is, as a matter of law, transferred from the negligent seller (A) to the innocent victim (C).5
*128In the end, I can appreciate the misgivings about Fazzolari and “policy” concerns about the exposure of sellers of vehicles that may drive, and inform, the concurrence’s approach. But we cannot “get there from here.” This case should be remanded to the trial court.
Armstrong and Schuman, JJ., join in this dissent.The concurrence reasons as follows:
“[0]nce ownership and control of the vehicle have been relinquished, the prior owner loses the ability to make an ongoing determination of whether the vehicle is safe to drive. That ongoing determination can be made only by those exercising ownership and control over the vehicle. Here, May lost that ability an entire year before the accident, and the vehicle had been in the hands of two subsequent owners during that year. Under the circumstances alleged, negligent maintenance of a vehicle during a prior period of ownership, without more, cannot form the basis for liability for injuries that occur a year after that prior owner has relinquished the ability to assess and control the vehicle’s *124roadworthiness. Although one can imagine circumstances in which such injuries would be literally foreseeable by the prior owner, they would not be reasonably foreseeable.
“That is so because the actions of those who drive and maintain a vehicle at the time of an accident — those who exercise the ability, to the extent possible, to assess the vehicle’s roadworthiness — form the intervening harm-producing force behind any injuries that result from the unsafe condition of the vehicle.”
207 Or App at 121 (Ortega, J., concurring) (footnote omitted; emphasis in original).
Restatement (Second) of Torts § 440 (1965) defines “superseding cause” as follows:
“A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.”
That understanding of reasonable foreseeability was well established in Oregon law long before Fazzolari:
“The specific question before us is, then, whether plaintiffs injury and the manner of its occurrence was so highly unusual that we can say as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur. Stated in another way, the question is whether the circumstances are out of the range within which a jury could determine that the injury was reasonably foreseeable.”
Stewart v. Jefferson Plywood Co., 255 Or 603, 609-10, 469 P2d 783 (1970).
See also Link v. Massie, Slate, 277 Or 715, 720-21, 561 P2d 634 (1977) (citing with approval Restatement § 440’s formulation of "superseding cause” and concluding that that question was for the jury).
Note, further, that that result would almost certainly still hold even if the seller fraudulently misrepresents the car’s condition to the buyer, who reasonably detrimentally relies on those representations: The victim (as in the hypothetical) could not recover in negligence against the buyer and could not recover in fraud against the seller (because the seller made no representations to the victim).