dissenting.
The majority concludes that the trial court did not err in granting summary judgment to defendant because plaintiffs had not presented evidence sufficient to create a factual dispute that Mayfield’s violent acts were the *539foreseeable result of defendant’s service of alcohol to Mayfield while he was visibly intoxicated. 263 Or App at 530. Because I disagree that summary judgment was appropriate, I dissent.
To frame my dispute with the majority’s conclusion, I set forth the relevant legal history, framework, and social context. In 1987, the Oregon Supreme Court clarified the negligence standard in Oregon in Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987):
“[UJnless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from [the] defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”
In describing negligence in terms of “foreseeability” rather than in terms of “duty” or “no duty,” the court described how the law provides limits on when one individual might expect to hold another individual liable for harms suffered by the first. The concept of “foreseeability” refers to the “generalized risks of the type of incidents and injuries that occurred rather than predictability of the actual sequence of events.” Id. at 21 (emphasis added); see also Buchler v. Oregon Corrections Div., 316 Or 499, 509, 853 P2d 798 (1993) (discussing Fazzolari).
A year after Fazzolari, the Supreme Court decided Moore v. Willis, 307 Or 254, 767 P2d 62 (1988), and Hawkins v. Conklin, 307 Or 262, 767 P2d 66 (1988), on the same day. In Moore, the defendants, the owners of two taverns, served alcohol to (and then one called a taxi for) two customers, each of whom was visibly intoxicated. The customers left the tavern in the taxi and killed the taxi driver, Moore, while struggling over a gun. The trial court granted the defendants’ ORCP 21 B motion for judgment on the pleadings. On review, the Oregon Supreme Court delineated what facts a plaintiff must set forth to sufficiently allege the element of foreseeability and state a claim for negligence and concluded that the complaint in Moore was insufficient. The plaintiff had alleged that the tavern owners “were negligent *540[in serving alcohol to the visibly intoxicated customers], and their negligence was the proximate cause of [Moore’s] death.” Id. at 257. The court stated:
“It may be common for intoxicated and underage drinkers to become violent. * * * At the pleading stage, however, a court cannot simply assume that it is common for intoxicated or underage drinkers to become violent in order to support an inference that violence is a foreseeable result of serving alcohol to someone who is intoxicated. *** In conclusion, [when a plaintiff claims that a risk was foreseeable,] we hold that the complaint must allege facts that would allow the factfinder to determine that the defendants should have known of the danger to others.”
Moore, 307 Or at 260-61 (internal citations omitted; emphasis added).
In Hawkins, a case with a similar factual basis involving the service of alcohol to visibly intoxicated persons who later acted violently, the Oregon Supreme Court determined that the “plaintiff failed to allege foreseeability[,]” because the complaint lacked allegations that the defendant had any knowledge or reason to know that the intoxicated customer had acted violently or that, if the defendant had been negligent as alleged — by serving a visibly intoxicated customer alcohol — the defendant then knew or should have known of the risk of violence to others without also having knowledge of the customer’s violent or threatening behaviors. Hawkins, 307 Or at 269 (emphasis added).
Several years later, we applied those principles in different procedural postures and factual contexts. In Sparks v. Warren, 122 Or App 136, 856 P2d 337 (1993), the plaintiff brought a negligence claim for injuries he sustained when one of the defendants, an underage fraternity member, assaulted him after consuming alcohol. We affirmed the trial court’s summary judgment ruling in the defendants’ favor, concluding that, because the plaintiff had presented no evidence on the element of foreseeability to create a genuine issue of material fact, the plaintiffs evidence could not as a matter of law result in an inference connecting the defendant’s misconduct to the creation of a foreseeable risk of violence. Sparks, 122 Or App at 139-40.
*541More recently, in Stewart v. Kids Incorporated of Dallas, OR, 245 Or App 267, 261 P3d 1272 (2011), rev dismissed as improvidently allowed, 354 Or 104 (2012), in an action for negligence brought after a 13-year-old girl was sexually assaulted at a fundraiser put on by one of the defendants, we affirmed the trial court’s grant of the defendants’ ORCP 21 A(8) motion to dismiss. The plaintiff had alleged that the defendants should have known that a “reasonable probability” existed that “sexual predators would come to the [fundraiser] to harm children * * * because teenage girls were participating * * *, the [fundraiser] was advertised, and sexual predators might have had contact with teenage girls participating in the [fundraiser].” Id. at 269-70. We rejected the plaintiffs generic allegations of foreseeability, and continued to apply Moore’s principles relating to the foreseeability element of negligence claims. Stewart, 245 Or App at 286. Thus, our recent precedents still require that plaintiffs allege some specific facts — above and beyond that of visible intoxication and everyday knowledge — that supports an inference that the defendant knew or had reason to know of the danger to others. Id.-, Moore, 307 Or at 260-61.
While Moore and Hawkins were working through the courts, the legislature enacted Oregon’s mandatory alcohol server education program. The Oregon Liquor Control Commission (OLCC) established its education program in 1987, with an aim toward reducing and preventing alcohol-related issues and increasing awareness relating to Oregon alcohol laws, responsible alcohol-service strategies, and problems associated with alcohol abuse. OLCC, Alcohol Server Education Course, 1-2 (2013), available at http://www.oregon.gov/olcc/docs/publications/alcohol_ server_education_course.pdf (last modified March 2013) (Fact Sheet). As a result of this first-in-the-nation mandatory program, Oregon professional alcohol servers’ understanding of the risks and effects of the overconsumption of alcohol has by legislative directive evolved significantly.
The Supreme Court decided Moore and Hawkins in 1988 — the endpoint of Oregon’s era of oblivion to the dangers of the overconsumption of alcohol. In the years since those cases were decided, the expansion of awareness regarding *542the toxic consequences of the overconsumption of alcohol has been immense. The Oregon Supreme Court’s conclusion in Moore that “[t]he fact that someone is visibly intoxicated * * *, standing alone, does not make it foreseeable that serving alcohol to the person creates an unreasonable risk that the person will become violent,” 307 Or at 260, cannot be reconciled with the knowledge and current environment relating to alcohol.
Oregon’s statutorily mandated alcohol server education program is based on the concept that people who serve alcohol professionally can be a “positive force in reducing alcohol-related problems and enhancing public health and safety.” Fact Sheet at 1. Servers receive education regarding alcohol as a drug and its effects on the body, behavior, and driving ability; the effects of alcohol in combination with commonly-used legal (prescription or nonprescription) drugs and illegal drugs; state alcohol beverage laws, such as the prohibition of sale to minors and intoxicated persons, sale for on- or off-premises consumption, hours of operation, penalties for violation of those laws, drunk-driving laws, and liquor liability statutes; alcoholism and community treatment programs and agencies; standard operating procedures for dealing with customers, including intervention with difficult and belligerent customers and ways to cut off service and deal with those customers; alternative means of transportation to get the customer safely home; and advertising and marketing for safe and responsible drinking patterns. ORS 471.542(5).
In the course of that education, servers also learn that irresponsible drinking leads to an array of damages, problems, and societal costs, including violence and violent crime. As the workbook for the Academy of Training and Prevention1 illustrates, servers learn that alcohol consumption:
*543• “[I]s a major factor in crashes, drowning, industrial accidents, and serious crimes including murder, suicide, assault, rape and domestic abuse.”
• “ [I]mpairs the thoughts and actions of the drinker” and, when consumed in excess, “may alter judgment.”
• Can cause violence by “lowering inhibitions in people with a tendency to violence.”
Academy of Training and Prevention, OLCC Alcohol Education Program Alcohol Server Education Online Training Manual, ATP 4, 12, 14, available at http://www.olccd.ass. com/Resources/Workbook (last modified December 2010) (Workbook). Further, servers learn that they are in a position to “reduce the deaths, injuries, damages, societal problems, and costs resulting from the misuse of alcohol” and are in “a position of public trust to dispense a drug that * * * can have deadly results when used inappropriately.” Id. at ATP 5.
As pertinent here, servers learn specific techniques for cutting off intoxicated patrons in order to avoid fights and how to “keep control of the situation even though an intoxicated customer may be hostile, threatening, and irrational.” Id. at ATP 49. Servers are also educated on Oregon’s liquor liability laws, including the fact that they may be liable for “deaths, injuries, and damages caused by intoxicated persons even when an automobile crash is not involved.” Id. at ATP 59. As a result of this statutorily-mandated training, servers today are well aware of the dangers of overconsumption of alcohol. According to the OLCC:
“This training has increased alcohol servers’ awareness of problems associated with alcohol abuse and gives servers the information and skills they need to sell alcohol responsibly. Trained, professional servers have learned to deny service to minors and to visibly intoxicated persons. As a result, the vast majority of OLCC-licensed businesses sell alcohol safely and responsibly and do not create problems for their patrons or communities.”
Fact Sheet at 2.
Given the legislature’s express recognition of the dangers connected to the overconsumption of alcohol, including, *544specifically, the risk of the “aggressive” or “belligerent” customer, and the enlightenment of Oregon’s servers in the decades since Moore that has transpired as a result, it is fair to say that, in Oregon today, the fact that someone is visibly intoxicated ordinarily will make it foreseeable to a professional alcohol server that serving that person more alcohol creates an unreasonable risk that that person will become violent. As a result, proof of the fact that a person was visibly intoxicated at the time a server served that person another drink ordinarily should be sufficient to create a jury question as to whether any subsequent violent conduct by the visibly intoxicated person was foreseeable to the server. Further, evidence such as that presented by plaintiff, showing a link between alcohol and violence, commonly serves to corroborate and buttress the evidence that the person was visibly intoxicated, creating an issue of fact concerning whether that person’s acts were foreseeable to the server. Although that fact may not compel the conclusion that violence was foreseeable, it, at a minimum, is sufficient to submit the issue of foreseeability to the jury in a case like this one, where there is no reason to think that defendant’s statutorily mandated training did not put it on notice that the resulting harm was one of the many predictable (and legislatively anticipated) consequences of the over-service of alcohol and excess alcohol consumption. The legislature long ago recognized that violence is a predictable harm associated with the overconsumption of alcohol. As a result of that legislative recognition, servers are aware of that predictable harm as well. It is time for the law to catch up.
Because the law has not yet done so, I do not dispute the applicability of Moore’s basic principles to this case; however, I believe that the majority improperly applies those principles. Based on the facts alleged and the evidence presented, I would conclude that plaintiffs’ evidence created a genuine issue of material fact under Moore’s principles as currently applied.
Plaintiffs alleged that
“ [i] ntoxicated drinkers frequently become violent. Defendant ***, which was in the business of serving alcohol, had reason to know that Mayfield would become violent, because those who are in the business of serving alcohol *545know that visibly intoxicated drinkers frequently become violent.”
Thus, plaintiff met Moore’s basic pleading requirements by alleging more than just Mayfield’s visible intoxication. Defendant, in its motion for summary judgment, asserted that there was “no evidence that Mayfield’s off-premises criminal assault was reasonably foreseeable — a prerequisite to stating a claim for relief against a commercial alcohol provider under Oregon law.” (Emphasis added.) In opposing defendant’s summary judgment motion, plaintiffs presented evidence on the issue of foreseeability in the form of Dr. Brady’s declaration and an excerpt of the bartender’s deposition transcript.
Brady’s declaration, excluding the stricken sentence, was admissible evidence that Mayfield was visibly intoxicated at the time he drank his last two to three drinks at defendant’s bar. Based on the blood alcohol content (BAC) extrapolated by Brady, which was between 0.200 percent and 0.250 percent at the time Mayfield left defendant’s bar, Brady opined that Mayfield would not only have been visibly intoxicated, but would have had impaired judgment and would have been unable to employ reasonable decision-making skills, and, like others who have consumed similar quantities of alcohol, would have lacked normal judgment and self-control. Brady also opined that “intoxicated drinkers frequently become violent. * * * The link between visible intoxication and increased levels of violence has been well-established in the medical, scientific, and lay literature for decades, if not more than a century.” The declaration also noted that Brady was “prepared to testify to the opinions set forth herein.”
Plaintiffs also submitted the following colloquy linking alcohol and violence from a portion of the bartender’s deposition testimony:
“[Attorney]: And when you say a tremendous amount of traffic, can you quantify that for us? I mean, you say it’s everyday you’ve got [methamphetamine users] in the bar.
“[Bartender]: Yeah.
“ [Attorney]: Violence in the bar as well associated with the [methamphetamine users]?
*546“[Bartender]: No, not the [methamphetamine users]. That’s what alcohol is for.
“[Attorney]: That’s the alcohol?
“[Bartender]: That’s the alcohol talking.
“[Attorney]: How frequently do you have some disruptive violent behavior going on?
“[Bartender]: I’d say maybe once a month max, something like that.”
The bartender testified that he worked at a bar within walking distance of defendant’s bar and that he had been trained to evaluate whether a patron has had too much to drink in order to determine whether to serve that patron alcohol. The bartender went on to state that he had made a similar evaluation of Mayfield on the night of the shooting and declined to serve him. The bartender also testified that defendant’s typical patrons generally consisted of an aging population, but that he had been in that bar multiple times in the past several years and had seen visibly intoxicated patrons in that bar. He further noted that, on occasion, patrons from defendant’s bar had come to his bar after defendant’s bar had closed for the evening.
That admissible evidence specifically addressed the issue raised in defendant’s motion for summary judgment, i.e., foreseeability. The majority concludes that that evidence “is insufficient to permit a rational factfinder to make the finding that Moore requires.” 263 Or App at 533.
The majority’s conclusion that plaintiffs’ evidence does not create a genuine issue of material fact is incorrect. The majority appears to incorrectly elevate plaintiffs’ burden in responding to that motion for summary judgment. In doing so, the majority also disregards the general — and longstanding — rule that foreseeability questions are typically jury questions.
The majority incorrectly elevates plaintiffs’ burden in responding to the motion for summary judgment by requiring that plaintiffs submit additional evidence. As to Brady’s declaration, the majority reasons that, to create a factual issue, plaintiffs had to supplement the evidence that *547plaintiffs had already presented; that is, without “additional evidence,” the majority concludes that plaintiffs’ evidence would not permit a reasonable factfinder to infer that defendant knew or had reason to know that violence would be a foreseeable result of serving alcohol to a visibly intoxicated person, i.e., Mayfield. 263 Or App at 530-31, 535 n 3, 536. The majority finally states that
“ [i]t may not have taken much additional evidence to convert those unfounded assumptions into permissible inferences. However, plaintiffs did not supply that evidence here, and we cannot supply it for them by speculating that such evidence might exist.”
263 Or App at 536 (emphasis added).
By breaking down the evidence presented into individual pieces, instead of looking at the sum of the evidence on the issue of foreseeability, and then delving into a discussion of the “stacking of [permissible] inferences,” the majority’s reasoning misses the forest for the trees. It concludes that no reasonable mind could infer that defendant should have known that serving Mayfield while he was visibly intoxicated would lead to Mayfield’s violent acts. 263 Or App at 535-36. That conclusion is based on reductionism in its most patent form and excludes, in my view, several key points that can be drawn from plaintiffs’ evidence, which I have drawn out above. Those points lead to other, reasonable inferences that the majority disregards (such as that a person in the business of serving alcohol would know that a connection exists between the consumption of alcohol and violence, or that, because Mayfield was highly intoxicated after over-consuming alcohol — to the point that his judgment and self-control was impaired — he would, like others who consume too much alcohol, act in an unreasonable manner and create unreasonable risks).
The majority goes on to conclude that “the only evidence that plaintiffs submitted in support of that ‘reason to know’ theory of foreseeability” consisted of Brady’s declaration — setting forth facts that he, a medical doctor with expertise in “alcohol physiology,” could testify, “to a degree of reasonable medical certainty,” that “[i]ntoxicated drinkers frequently become violent” and that “medical, scientific, *548and lay literature” has established “the link between visible intoxication and increased levels of violence” — and the deposition testimony of the bartender that, in his experience, when a bar patron becomes violent, it is due to the influence of alcohol. 263 Or App at 532-33 (emphasis added). The majority then states that it would be “guesswork” to infer that “the unspecified ‘medical, scientific, and lay literature’” documenting the connection between intoxication and violence is the type of literature “that would be read by persons in the business of selling alcohol.” 263 Or App at 535-36. At this stage in the litigation, the absence of reference to a specific, identifiable piece of literature in Brady’s declaration is not fatal to the question whether the jury could infer that defendant’s conduct created a risk of violence based on the evidence presented, nor does it compel a judgment for defendant. See generally Jones v. General Motors Corp., 325 Or 404, 413-14, 939 P2d 608 (1997) (Under ORCP 47 C, no genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, “‘no objectively reasonable juror could return a verdict for the adverse party,”’ which means that “summary judgment is appropriate only if the *** facts would compel a jury to return a verdict for the moving party.” (Quoting ORCP 47 C; emphasis added.)). In requiring additional evidence, the majority erroneously elevates the standard required by Moore and ORCP 47 C.
In this case, unlike in Moore, Hawkins, and Stewart, the question arises in relation to a motion for summary judgment pursuant to ORCP 47 C. “ [U] nder ORCP 47 C, the party opposing summary judgment has the burden of producing evidence on any issue ‘raised in the motion’ as to which the adverse party would have the burden of persuasion at trial.” Two Two v. Fujitec America, Inc., 355 Or 319, 324, 325 P3d 707 (2014) (emphasis added). Because defendant “raised in the motion” the issue of foreseeability, and plaintiffs “had the burden of persuasion on that issue at trial,” plaintiffs therefore were required, under ORCP 47 C, “to produce evidence on the issue of [foreseeability] to defeat summary judgment.” Id. at 324 (emphasis added). The majority conflates that minimal burden with plaintiffs’ eventual burden *549of persuasion at trial2 (that it no doubt would have had, had the action survived that long).3
Plaintiffs discharged that burden. And although I acknowledge that plaintiffs are relying on a slim evidentiary reed, contrary to the majority, I would neither hold that the evidence, as a matter of law, does not create a genuine issue of material fact nor that, at this stage in the litigation, additional evidence is required to demonstrate that a genuine issue of material fact exists in order for the fact question to reach a jury.
The proper question is whether plaintiff produced admissible evidence on the issue of foreseeability — i.e., that defendant’s conduct caused a “foreseeable risk *** of the kind of harm that befell the plaintiff [s],” Fazzolari, 303 Or at 17 — so as to create a “triable issue,” or rather, so as to demonstrate that a genuine issue of material fact exists such that plaintiffs are entitled to a jury determination of that fact. ORCP 47 C; see also Jones, 325 Or at 413; Doyle v. City of Medford, 256 Or App 625, 650, 303 P3d 346, rev allowed, 354 Or 386 (2013); Wilson v. Wilson, 224 Or App 360, 364, 197 P3d 1141 (2008), rev den, 346 Or 258 (2009) (citing Davis v. County of Clackamas, 205 Or App 387, 393-94, 134 P3d 1090, rev den, 341 Or 244 (2006), for the proposition that *550ORCP 47 C gives the adverse party the “burden of producing [admissible] evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial”); O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Or App 456, 461, 157 P3d 1272 (2007) (discussing burden of producing evidence, meaning that plaintiff had to “come forward with specific facts demonstrating a genuine issue for trial”). The answer to that question is yes.
Thus, by requiring that plaintiffs present additional facts to demonstrate a factual issue for purposes of opposing the summary judgment motion, the majority has elevated the standard of what the adverse party is required to present at the summary judgment stage. See Forest Grove Brick v. Strickland, 277 Or 81, 87, 559 P2d 502 (1977) (“It is not the function of this court on review to decide issues of fact but solely to determine if there is an issue of fact to be tried.”). Under the majority’s analysis, the only means by which plaintiffs could show foreseeability would be a demonstration that that particular defendant knew about the particular individual’s propensity for violence or that all defendants had such knowledge. Both of these showings are an anathema to the concept of reasonable foreseeability as articulated in Moore.
Thus, I would hold that, by presenting affirmative evidence relating to foreseeability, plaintiffs showed that a factual issue existed. I would conclude that a reasonable juror could infer that the risk of harm was foreseeable if defendant acted negligently (as alleged, by serving Mayfield when he was visibly intoxicated) based on the inference that defendant, a business that serves alcohol, would frequently have the opportunity to observe the reactions of people who consume alcohol, including, but not limited to its typical patrons, and would have reason to know that a person who consumes alcohol in excess may respond with violent behaviors. Sparks, 122 Or App at 140.
That leads me to my next point. The majority erroneously disregards the general rule that foreseeability questions are typically jury questions. Fazzolari, 303 Or at 12 (questions of foreseeability “ordinarily can be left to the jury, although at the outer margins of debatable conduct a court *551is obliged to say that the conduct does or does not meet the standard”) (internal quotation marks omitted).
That principle did not begin with Fazzolari-,4 rather, it was in longstanding use in our jurisprudence and continues to play an important role.5 The majority concludes that this “rule of thumb” “affords the least guidance where, as here, the Supreme Court has articulated with some precision what a plaintiff must prove in order to establish foreseeability.” 263 Or App at 537 (emphasis added). It is improper to disregard that longstanding principle when the circumstances of the case are not at the “outer margins of debatable conduct.” Moore, 307 Or at 254; Hawkins, 307 Or at 262; Sparks, 122 Or App at 136. This case is not so extreme that the circumstances dictate that the foreseeability issue should not be presented to the jury. See McPherson v. Oregon Dept. of Corrections, 210 Or App 602, 613-14, 152 P3d 918 (2007) (when an escaped convict assaulted the plaintiff at an apartment complex, and harm to the plaintiff was allegedly *552foreseeable, we noted, “[W]hether a rational juror can find that harm is foreseeable, particularly in the context of criminal activity by third parties, is an ad hoc determination depending on the particular circumstances of each case. No bright line rules exist. Fact-matching is of limited utility. Unforeseeability as a matter of law should be found only in extreme cases.” (Emphasis added.)).
As further support for the majority’s neglect of that oft-cited legal principle, it states that it is simply following its role to “determine!] as a matter of law whether the facts alleged or the evidence of them is sufficient to support relief.” 263 Or App at 538 (citing Buchler, 316 Or at 509). However, when viewed in context, it is clear that Buchler provides no support to the majority because the general rule — that foreseeability questions remain factual questions for the jury to decide as long as they fall “within” the range of “circumstances or conditions under which one member of society may expect another to pay for a harm suffered” — remains the same.6 Id.
Under Moore and Hawkins, plaintiffs’ allegations were adequate. Further, plaintiffs’ evidence submitted in response to a motion for summary judgment demonstrated that a genuine issue of material fact exists and that this case is not an “extreme case” at the “outer margins” or “outside [the] limits” of circumstances or conditions under which one member of society may expect another to pay for a harm suffered.
*553And, in point of fact, the case on which the majority relies, Buckler is instructive. In that case, a convicted car thief with no known history of violent conduct escaped from prison. 316 Or at 502. Two days later, and over 50 miles away, the escaped prisoner shot two people, killing one and injuring the other. Id. As to the question of foreseeability, the Supreme Court concluded that that factual scenario was “outside th[e] limits” and concluded that, “[a]s a matter of law, the harm that actually occurred did not result from any risk of harm to others that was unreasonably created by leaving the keys in the van [which facilitated the prisoner’s escape]; summary judgment was appropriate for that factual allegation of negligence.” Id. at 514.
In juxtaposition, defendant served Mayfield until he was visibly intoxicated, with an estimated BAC between 0.200 percent and 0.250 percent, when he left defendant’s bar, walked a short way up the street, was unsuccessful in getting other bartenders at nearby bars to serve him alcohol, and then shot and injured plaintiffs. As noted by my prior recitation of case law, such incidents are not uncommon, nor “extreme.” Indeed, the circumstances of this case are fairly representative of the facts common to the cases dealing with over-consumption of alcohol and violence. Therefore, the factual questions that exist in this case should be decided by a jury, as our precedents have clearly dictated. See, e.g., Moore, 307 Or at 257; Hawkins, 307 Or at 269; Sparks, 122 Or App at 140.
Accordingly, I dissent.
The OLCC maintains a list of certified training providers on its website. The Academy of Training and Prevention is one of those providers. See OLCC, Server Education Trainers (Providers), available at http://www.oregon.gov/ olcc/docs/service_permits_and_server_ed/provider_list_3_2014.pdf (last modified March 25, 2014). To be certified, a training provider must, among other things, have a course that meets the OLCC’s minimum curriculum standards and a workbook “that meets the [OLCC’s] Minimum Workbook Standards.” OAR 845-016-0015(1), (l)(d).
OEC 305 states that “ [a] party has the burden of persuasion as to each fact the existence or nonexistence of which the law declares essential to the claim for relief or defense the party is asserting.”
The burden of persuasion, as described in OEC 305
“summarizes the obligation of a party to convince the trier of fact that the party’s assertion about an essential fact is true. If that party does not establish the truth of that essential fact in the mind of the factfinder by'the requisite standard of proof, then the factfinder cannot find that the fact exists. ***** The burden of persuasion is, in essence, a method of breaking ties regarding disputed factual questions.”
State v. James, 339 Or 476, 487, 123 P3d 251 (2005) (emphasis added).
By determining that plaintiffs’ affirmative evidentiary showing was insufficient to show that issues of fact existed because plaintiffs would have had the trial burden as to the issue of foreseeability, the majority forgets that “[t]he record on summary judgment is viewed in the light most favorable to the party opposing the motion. This is true even as to those issues upon which the opposing party would have the trial burden!’ Jones, 325 Or at 420 (emphasis in Jones); see also Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 613, 892 P2d 683 (1995) (at the summary judgment stage, the moving party has the burden to establish that there are no genuine issues of material fact, “even though [the adverse party] would have had the burden of establishing its claims at the time of trial”).
See, e.g., Donaca v. Curry Co., 303 Or 30, 38, 734 P2d 1339 (1987); Stewart v. Jefferson Plywood Co., 255 Or 603, 607-08, 469 P2d 783 (1970) (stating principle); Kirby v. Sonville, 286 Or 339, 347, 594 P2d 818 (1979); Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 168, 566 P2d 509 (1977) (“A case should be taken from the jury only when the facts are such that only one conclusion can be drawn from them.”); Cutsforth v. Kinzua Corp., 267 Or 423, 445-46, 517 P2d 640 (1973); Kor v. Sugg, 250 Or 543, 548, 443 P2d 641 (1968) (“Normally the question of whether a defendant is negligent under particular circumstances is for the jury.”); Eberle v. Benedictine Sisters, 235 Or 496, 499, 385 P2d 765 (1963) (ordinarily questions of fact are for the jury); Powell v. Moore, 228 Or 255, 263, 364 P2d 1094 (1961) (same); Arney v. Baird, 62 Or App 643, 647, 661 P2d 1364, rev den, 295 Or 446 (1983) (“The issue should have been withdrawn from the jury only if defendants’ conduct clearly falls either above or below the community’s standard of reasonable care.” (Emphasis added.)); Itami v. Burch, 59 Or App 400, 403-04, 650 P2d 1092 (1982) (noting prior case law stating that “[t]he question whether a reasonable person in appellants’ position would have foreseen risks of injury to the plaintiff is a question of fact for the jury. Accordingly, our role on review is a limited one.”) (citations omitted).
See, e.g., Fazzolari, 303 Or at 17 (stating principle); McPherson v. Oregon Dept. of Corrections, 210 Or App 602, 618, 152 P3d 918 (2007) (reiterating principle); Najjar v. Safeway, Inc., 203 Or App 486, 492, 125 P3d 807 (2005) (“The Supreme Court has cautioned us that we are to conclude that a reasonable jury could not come to such a conclusion only in the ‘extreme case [,] ’ * * * [i.e.,] the case that falls beyond the outer margins of debatable conduct!, which] *** are few and far between and should be identified ad hoc. Mindful of that rule, we cannot conclude that this case is extreme.”); Panpat v. Owens-Brockway Glass Container, 188 Or App 384, 393, 71 P3d 553 (2003) (“[F]oreseeability is generally regarded as a question of fact, and the issue is not a likely candidate for summary judgment.” (Internal quotation marks omitted.)).
In Buchler, the Oregon Supreme Court stated:
“[As discussed in Fazzolari,] ‘[d]uty’ and ‘foreseeability’ are each but verbal tools used in explanatory reasoning to answer the legal question, ‘Should defendant pay for plaintiff’s harm?’ In either formulation, the use to which courts and litigants put the question remains the same. When tested before trial, do the allegations of a complaint state facts that, under the law, will allow plaintiff to recover from the named defendant? When tested after a trial, does the evidence introduced reasonably permit findings of fact on which the law will allow the plaintiff to recover from the defendant? Either formulation — duty or foreseeability — -is a method of describing how the law limits the circumstances or conditions under which one member of society may expect another to pay for a harm suffered. Within those limits, the jury or other factfinder may determine whether to award damages and in what amount. Outside those limits, the judge determines as a matter of law whether the facts alleged or the evidence of them is sufficient to support relief.”
316 Or at 508-09 (emphasis added).