dissenting.
I write separately to elaborate further on the concurrence’s departure from the established negligence law of this state and its reliance on a wholly inapposite opinion, specifically Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 83 P3d 322 (2004).
The concurrence purports to start its analysis, as it should, from the rule in Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987). However, it very rapidly departs from the Fazzolari analysis and, as Judge Haselton astutely observes, “chart[s] a new legal course.” 207 Or App at 127 (Haselton, J., dissenting). As I explain below, that new legal course takes us to a critical juncture at which we must decide whether to continue to apply the Fazzolari analysis or to pay only lip service to it and cloak otherwise prohibited “freewheeling judicial ‘policy declarations’ ” and thinly disguised value judgments in the language of the Fazzolari framework. Donaca v. Curry Co., 303 Or 30, 36, 734 P2d 1339 (1987).
To understand how far astray the concurrence would lead us, it is useful to look back at how we arrived at this juncture. In the classic, black-letter negligence formula— duty, breach, causation, damage — the courts have two points in the analysis at which they can act as lawmakers in delimiting the boundaries of a defendant’s liability to a plaintiff. First, a court could conclude that the defendant’s conduct was not the proximate, or legal, cause of the plaintiffs damages. Second, a court could conclude that the defendant owed the plaintiff no duty to protect him or her from whatever harm befell him or her.1
*129Those two opportunities for judicial lawmaking do not exist in Oregon negligence law, and have not existed for nearly 20 years. Rather, under Oregon negligence law, the question whether a defendant is liable to a plaintiff in negligence presents factual questions for the jury, unless the court can articulate why no reasonable factfinder could conclude that the plaintiffs injury was reasonably foreseeable or that the defendant had acted unreasonably. Two landmark cases made that so.
First, in Stewart v. Jefferson Plywood Co., 255 Or 603, 606, 469 P2d 783 (1970), the Supreme Court took proximate cause off the table. After Stewart, there is but one question about causation, and it is a factual one — did “defendant’s conduct in fact contribute [ ] to the events that harmed the plaintiff, as cause and effect might be described outside any legal context.” Fazzolari, 303 Or at 14; see also Oregon Steel Mills, Inc., 336 Or at 340 (“This court has rejected the use of the traditional concept of proximate or legal cause * * *. A plaintiff, of course, still must prove ‘factual’ or ‘but-for’ causation — that there is a causal link between the defendant’s conduct and the plaintiffs harm [.]”). Where, as in this case, the plaintiff alleges that the defendant’s negligence caused the plaintiffs harm, the court cannot dismiss the complaint on a Rule 21 motion on causation bases, for it must take the facts as alleged by the plaintiff to be true, and if true, causation for purposes of Oregon negligence law has been established.
Second, Fazzolari took the defensive “no duty as a matter of law” argument off the table. Fazzolari, 303 Or at 11-17. In Donaca — episode three in the Fazzolari trilogy— the court explained that
“broadly phrased arguments over ‘duty in common-law negligence tend to turn into a disputed rule of law what properly is a determination of the ordinary issues of negligence liability: whether defendant’s conduct caused a foreseeable kind of harm to an interest protected against that *130kind of negligent invasion, and whether the conduct creating the risk of that kind of harm was unreasonable under the circumstances. The existence and magnitude of the risk [in the particular circumstances] bear on the foreseeability of harm. The feasibility and cost of avoiding the risk bear on the reasonableness of defendant’s conduct. Both clearly are empirical questions. We do not mean that they must in every case be submitted to a jury; in an extreme case a court can decide that no reasonable factfinder could find the risk foreseeable or defendant’s conduct to have fallen below acceptable standards.”
303 Or at 38-39. The court phrased it another way in Fazzolari: “As far as ‘negligence’ rests on a standard of reasonable conduct, the issue ordinarily can be left to the jury, although!,] at the outer margins of debatable conduct!,] a court is obliged to say ‘that the conduct does or does not meet the standard.’ ” 303 Or at 12 (quoting Stewart, 255 Or at 608). In sum, after Fazzolari, in run-of-the-mill negligence cases, Oregon courts could no longer simply say that defendant owed “no duty” to plaintiff; rather, in order to keep the case from the jury, the court would have to be able to articulate why no reasonable factfinder could determine that the risk was foreseeable or that the defendant’s conduct was unreasonable.
The court did just that in the landmark case of Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993). In Buckler, the court concluded that no reasonable factfinder could determine that the plaintiffs’ gunshot injuries, inflicted on them by an escaped fugitive with a gun stolen from the fugitive’s mother, were the reasonably foreseeable consequences of the defendant’s failure to remove the keys from the ignition of a vehicle in which it had transported the fugitive. The fugitive was a minimum security prisoner who was transported to a forest work camp in the defendant’s van. The fugitive had no prior history of violence. The facts in Buckler presented the “extreme case” discussed in Donaca, in which the court, could conclude, without the intervention of a jury, that the plaintiffs’ injuries were not reasonably foreseeable as a matter of law. The injuries were simply too attenuated or unexpected.
*131Buckler was hailed by some as Fazzolari’s death knell. See, e.g., Kenneth J. O’Connell, A Postmortem Footnote Upon the Demise of the Fazzolari Error, 72 Or L Rev 933, 933 (1993) (“The decision in Buckler v. Oregon Corrections Division was a heartening event for those of us in the legal profession in Oregon who have looked upon the so-called Fazzolari triad’ as an abomination in the development of negligence law in Oregon.” (Footnote omitted.)). Although Buckler did expressly overrule Kimbler v. Stillwell, 303 Or 23, 734 P2d 1344 (1987) — episode two in the Fazzolari trilogy — the Fazzolari framework emerged only bent, not broken, after Buckler. Indeed, as explained above, Buckler is wholly consistent with the rest of the Fazzolari trilogy, which acknowledged that not all negligence cases must be submitted to a factfinder. Donaca, 303 Or at 38.
Nonetheless, there is loose language in Buckler upon which one looking to resurrect a proximate cause doctrine in Oregon negligence law could seize. It is useful to read that language in its context, so I reproduce the full paragraph:
“We decline to apply the ‘facilitation’ rationale of Kimbler * * * to this case. An intervening criminal instrumentality caused the harm and created the risk in that case, as in the present case. While it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity. In other words, in our society it is foreseeable that crimes may occur and that the criminals perpetrating them may cause harm. Thus, in a general sense, it is foreseeable that anyone whose conduct may in any way facilitate the criminal in committing the crime has played some part in the resulting harm. But mere ‘facilitation’ of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause harm so as to support liability for it.”
316 Or at 511-12 (emphasis added). One way to read that paragraph is to conclude that there is some sort of doctrine in Oregon negligence law under which a defendant’s liability can be limited if a “harm-producing force,” distinct from the defendant’s negligence, causes the plaintiffs harm. However, *132such a reading would sound a retreat to the pre-Stewart status of Oregon negligence law. That is, it would resurrect the proximate cause doctrine.
The correct understanding of Buckler is as a foreseeability case. The language of the quoted paragraph simply acknowledges that a particular injury may have more than one factual cause. Two hypotheticals serve to illustrate that principle.
If I were to run a stoplight and force a vehicle with the right-of-way to slam on its brakes and stop in the middle of the intersection, and if the other vehicle, while so stopped, were to be struck by a meteorite, then injuries sustained by the vehicle’s driver would have been caused by both my negligence and by the impact of the meteorite. The meteorite in this hypothetical is the “harm-producing force” that caused the other driver’s injuries. Despite the fact that my negligence in running the stoplight was also a factual cause of the injuries, the risk of causing another vehicle to be struck by a meteorite as a result of my negligent driving is simply unforeseeable. In such a case, no reasonable factfinder could determine that that risk was foreseeable. Thus, it would be appropriate for a judge to dispose of such a case prior to trial.
Contrast that hypothetical with the following. If I were to negligently pack my law clerk’s parachute for a skydiving adventure, and if he were to sustain injuries from his impact with the ground, then those injuries would have been caused by both my negligence and gravity. Gravity in this hypothetical is the “harm-producing force.” However, it could not reasonably be argued that I should escape liability for my clerk’s injuries simply because there was another “harm-producing force.” Rather, I would clearly be on the hook for those injuries because it is reasonably foreseeable that a negligently packed parachute could expose someone to the risk of facing the force of gravity without the ability to resist it.
Granted, both of those hypotheticals could be resolved the same way under a proximate cause analysis. However, because a proximate cause analysis places the court in the position of lawmaker, in that the court’s decision would define the scope of a defendant’s liability, it is inconsistent with Oregon negligence law. Whether a particular risk *133of harm is reasonably foreseeable remains a question of fact for the jury under Oregon law, except at the margins. See, e.g., Najjar v. Safeway, Inc., 203 Or App 486, 492, 125 P3d 807 (2005). Buckler is one of those cases in the margins.
So what are we to make of Oregon Steel Mills, Inc., the case on which the concurrence so heavily relies? On its face, it seems to support the concurrence’s harm-producing force/proximate cause doctrine. However, that case is best understood as an anomaly and is of limited usefulness outside of cases involving securities and similar market transactions.
In Oregon Steel Mills, Inc., the defendant had negligently performed some accounting work for the plaintiff that ultimately required the plaintiff to restate its earnings for 1994. As a result of a delay caused by the earnings restatement, the plaintiff was unable to make a public offering of stock and sell some additional debt at the time at which it had intended. Rather, the plaintiff was forced to enter a less favorable market one month later. Whereas its shares were selling at $16.00 per share on the date that it contended that it had intended to make the public offering, the shares were selling for only $13.50 per share on the date on which the plaintiff finally entered the market. The decline in the market was the result of a general decline in the economic fortunes of the steel industry.
The plaintiff brought a negligence action against the defendant, seeking damages of $35 million. On review, the Supreme Court held that “as a matter of law, the decline in [the] plaintiffs stock price * * * was not a ‘reasonably foreseeable’ consequence of [the] defendant’s accounting errors, and [the] defendant therefore c[ould not] be liable for damages based on that decline.” Oregon Steel Mills, Inc., 336 Or at 347.
Oregon Steel Mills, Inc., purports to apply theFazzolari framework, but under that framework, the case cannot possibly be correct. Here’s why.
In Oregon Steel Mills, Inc., the Supreme Court picked up the loss-causation doctrine of federal securities law *134and dropped it into Oregon negligence law, without apparently considering whether the former doctrine fit within the latter. As Judge Posner explained in Bastian v. Petren Resources Corp., 892 F2d 680, 683 (7th Cir 1990), “what securities lawyers call ‘loss causation’ is the standard common law fraud rule * * *, merely borrowed for use in federal securities fraud cases.” See also LHLC Corp. v. Cluett, Peabody & Co., Inc., 842 F2d 928, 931 (7th Cir 1988) (explaining that “Moss causation means that the investor would not have suffered a loss if the facts were what he believed them to be” and noting that the term is “ungainly to start with because [it] conscript[s a] noun[ ] for service as [an] adjective[ ]”). That is, in order to recover for losses in the market alleged to be the result of fraud, a plaintiff must prove that the fraud caused the decline in market value. It is not surprising “[g]iven the common-law roots of the securities fraud action,” Dura Pharmaceuticals, Inc. v. Broudo, 544 US 336, 344, 125 S Ct 1627, 161 L Ed 2d 577 (2005) — that the “loss causation doctrine” tracks the requirement in common-law fraud that the plaintiff prove proximate cause. See, e.g., Emerging Capital Inv. v. Stonepath Group, Inc., 343 F3d 189, 197 (2d Cir 2003) (noting the similarity between “loss causation” and “proximate cause element of common law fraud”). The loss-causation requirement in federal securities fraud cases initially drew from the principles underlying the federal securities statutes, and in 1995 was explicitly codified in those statutes. See 15 USC § 78u-4(b)(4) (2000 & Supp IV 2005) (“In any private action arising under this chapter, the plaintiff shall have the burden of proving that the act or omission of the defendant alleged to violate this chapter caused the loss for which the plaintiff seeks to recover damages.”).
Federal courts have not hesitated to apply the loss-causation doctrine from federal securities fraud law to state negligence cases within their diversity jurisdiction. See, e.g., Movitz v. First Nat. Bank of Chicago, 148 F3d 760, 763-64 (7th Cir 1998) (applying the loss-causation doctrine to a negligence case arising under Illinois law in which a plaintiff sought damages from the bank that had advised him in a real estate transaction). That makes sense to a certain extent with respect to states — such as Illinois in Movitz — that retain the traditional negligence analysis in which proximate cause *135is an element.2 And if one were inclined to import the loss-causation doctrine into intentional fraud law in Oregon, it would fit nicely within the established elements of that intentional tort. See Estate of Michelle Schwarz v. Philip Morris Inc., 206 Or App 20, 38-39, 135 P3d 409 (2006) (defining the elements of common-law fraud to include “consequent and proximate injury”).
However, incorporating the loss-causation doctrine into Oregon negligence law — to which proximate cause is an anathema — cannot be done without doing violence to both the Fazzolari trilogy and Stewart. Despite the court’s insistence that it was applying the “reasonably foreseeable” test, the result in Oregon Steel Mills, Inc., cannot be seen as anything other than a policy call made on the basis of proximate cause.3
*136The court acknowledged in Oregon Steel Mills, Inc., that market fluctuations are foreseeable. Most everyone is familiar with the adage, “Buy low; sell high.” Certainly a reasonable factfinder could determine that a professional’s negligence might cause its client to buy high or sell low. For example, a stockbroker could negligently fail to sell stock in a bear market that the broker’s client had directed the broker authority to sell in such a market. The loss caused by the broker’s negligence would be reasonably foreseeable, but, under Oregon Steel Mills, Inc., the broker would not be liable for the loss because the fall in the market would be said to be the harm-producing force. Thus, the apparent consequence of Oregon Steel Mills, Inc., is to insulate professionals from liability for the reasonably foreseeable consequences of their negligent actions, to the extent that their actions affect whether and when their clients enter and leave securities and similar markets.
This court made a similar policy decision in Granewich v. Harding, 150 Or App 34, 945 P2d 1067 (1997), rev’d in part, 329 Or 47, 985 P2d 788 (1999). In that case, a majority of this court held that an attorney cannot be liable for aiding and abetting his or her client’s breach of a fiduciary duty to a third person in the absence of a fiduciary duty between the attorney and the third person. Id. at 48. That holding was motivated, in part, by the majority’s concerns about the effect on law practice if the court were to hold the defendant attorneys liable. Id. at 46-47.
On review, the Supreme Court correctly reversed this court. Granewich v. Harding, 329 Or 47, 985 P2d 788 (1999). The Supreme Court resisted the temptation to make a policy call based on the status of the defendants, concluding that the main tort principle at issue in the case “readily *137extends to lawyers” and that the defendants’ “status as lawyers is irrelevant.” Id. at 56, 59. It appears that, in Oregon Steel Mills, Inc., the court’s resolve was not as strong.
Nonetheless, Oregon Steel Mills, Inc., is the law of Oregon. Yet to stretch it to the extent that the concurrence does in this case is to conclude that it overruled Stewart and Fazzolari, notwithstanding the fact that it cited both cases favorably. Correctly understood, Oregon Steel Mills, Inc., stands for the proposition that, in the realm of securities and similar market transactions, it is not reasonably foreseeable that a professional’s negligence could cause his or her client to incur losses that result from market changes. To ingenuously seize the phrase “harm-producing force” from Oregon Steel Mills, Inc. — despite its genesis in Buckler — and assert that it means anything other than superseding cause is untenable.
That does not mean that plaintiffs negligence claim against May Trucking must ultimately be submitted to a jury. It may develop on a motion for summary judgment or at trial that May’s negligence in maintaining the truck axle did not cause the axle to fail or that, given the nature of the axle failure, it was not reasonably foreseeable that subsequent owners of the truck would fail to recognize and correct the problem that caused the failure. However, those are not issues that can be resolved at the Rule 21 stage of this case.
Based on the foregoing understanding of Oregon negligence law, I cannot join the concurrence in its policy-making journey. Plaintiffs complaint stated a claim for negligence under Oregon law, and the trial court erred in concluding otherwise. The proper disposition of this appeal is reversal and remand. Therefore, I respectfully dissent.
Some commentators and courts have suggested, probably correctly, that those two opportunities for the judiciary to make law are in fact one opportunity *129simply to say that the defendant should not be liable for the plaintiffs damages. See, e.g., First Fed. Sav. v. Charter Appraisal Co., Inc., 247 Conn 597, 604 n 7, 724 A2d 497, 502 n 7 (1999) (citing W. Page Keeton, Prosser and Keeton on Torts § 42, at 274 (5th ed 1984)).
On the other hand, the incorporation of the loss-causation doctrine into negligence law makes little sense to the extent that it requires the plaintiff to prove that the defendant’s negligence was the direct cause of a decline in the market. Negligent acts will rarely, if ever, be of such significance as to rattle an entire market.
The loss-causation cases on which Oregon Steel Mills, Inc., relied are cases in which the plaintiffs had chosen to be in markets that, by their nature, fluctuate in response to market conditions. Because the plaintiffs had chosen to be in markets of that kind, the risk of loss in the markets was theirs unless the defendants’ actions affected the markets. That makes sense when the defendants’ actions did not alter the fact that the plaintiffs had chosen to be in markets that fluctuated independently of the defendants’ actions, and nothing that the defendants said or did altered the fact that the plaintiffs had knowingly chosen to be in such markets. Hence, losses sustained by the plaintiffs as a result of market changes could be recovered as damages only to the extent that the market changes were caused by the defendants’ conduct.
In Oregon Steel Mills, Inc., however, the plaintiff was not in the market, and it was not seeking damages that it had sustained in the market. Rather, it was seeking damages from the defendant for conduct that had affected the plaintiff’s ability to sell stock and debt in the market. It was reasonably foreseeable that the defendant’s negligent conduct could affect the plaintiffs ability to enter the market to take advantage of favorable market conditions, yet the court held that the defendant was not liable for the reasonably foreseeable consequences of the defendant’s conduct unless its conduct affected the market. That is equivalent to saying that I could not be liable for the reasonably foreseeable injuries sustained by my law clerk as a result of his use of the parachute that I had negligently packed unless my negligent conduct affected the force of gravity. Nevertheless, as a matter of policy, one could decide that, to the extent that the plaintiff sought to be in a market, it is the plaintiff that should bear the risk of market fluctuations, even when the defendant’s actions affected the plaintiffs ability to enter and leave the market. Although that may be a sensible policy choice, the adoption of it in Oregon Steel Mills, Inc., cannot be reconciled with the principles established in Stewart, Fazzolari, and Buckler regarding the role of courts in making policy choices that affect a defendant’s liability to a plaintiff.
*136Furthermore, by making that policy choice, the court made it unnecessary for professionals such as accountants and lawyers to negotiate agreements with their clients to insulate themselves from the foreseeable consequences of their negligent performance of professional services that affect market transactions by their clients. Normally, parties have to enter agreements that reheve themselves from the foreseeable consequences of their negligence in order achieve that protection. Ironically, by making the policy choice that it did, the court interfered in the normal market process by which professionals, clients, and their insurers make choices about the cost and consequences of the services that the professionals provide to clients that are involved in market transactions.