concurring.
I agree with the court’s disposition. I write separately to comment on the discussion of the premises for reconsideration of common-law rules expressed in G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988).
In G.L., the plaintiff asked this court to impose liability on a hospital, without proof of negligence, for an employee’s criminal assault against the plaintiff, who was a *102hospital patient. The employee was acting outside the scope of employment at the time of the assault. Because the parties had framed their arguments in terms of the competing policies supporting retention or modification of the preexisting common-law rule of nonliability, the court correctly referred to earlier cases in which it had analyzed the continuing viability of various common-law rules. The court purported to discern in the cases three general premises for judicial reconsideration of a nonstatutory rule or doctrine. However, in describing those premises, the court took care to use wording that would preclude interpreting the stated premises as an exhaustive list:
“Ordinarily this court reconsiders a nonstatutory rule or doctrine upon one of three premises: (1) that an earlier case was inadequately considered or wrong when it was decided, see, e.g., Winn v. Gilroy, 296 Or 718, 681 P2d 776 (1984) (reconsidering parental immunity); (2) that surrounding statutory law or regulations have altered some essential legal element assumed in the earlier case, see, e.g., Dahl v. BMW, [304 Or 558, 567, 748 P2d 77 (1988)] (enactment of comparative fault statutes supports re-examination of prior case holding that failure to wear a safety belt is not a proper defense); Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 562-67, 652 P2d 318 (1982) (wrongful death law did not alter liability to child if parent survives injury); or (3) that the earlier rule was grounded in and tailored to specific factual conditions, and that some essential factual assumptions of the rule have changed. Without some such premise, the court has no grounds to reverse a well-established rule besides judicial fashion or personal policy preference, which are not sufficient grounds for such a change, see Norwest, 293 Or at 553.”
G.L., 306 Or at 59 (emphasis added.)
In fact, as the wording emphasized above indicates, the list of premises set out in G.L. was not exhaustive. For example, in Noonan v. City of Portland, 161 Or 213, 239-40, 88 P2d 808 (1939), this court held that courts should not overrule announced controlling principles of law unless they are “manifestly wrong.” G.L. did not overrule the Noonan manifest error criterion merely by failing to cite it. The manifest error criterion, as with the other premises cited in G.L., requires more than an appeal to “judicial fashion or personal *103policy preference,” G.L., 306 Or at 59, but, when established, is as legitimate a ground for reconsidering a nonstatutory rule or doctrine as any other example cited in G.L.
Some subsequent references in this court’s cases to the pertinent passage of G.L., quoted above, began to recast the three premises listed in G.L. as a closed set that preclude judicial reconsideration on any other basis. For example, Heino v. Harper, 306 Or 347, 759 P2d 253 (1988), called that passage in G.L. “the rule concerning reconsideration of a court-created rule or doctrine.” Heino, 306 Or at 373 (emphasis added). However, Heino, like G.L., also referred to the three premises as proper subjects for judicial consideration rather than as an exclusive list of preconditions or requirements. Heino described the premises cited in G.L. as “factors” and concluded that the first G.L. “factor” — the earlier cases were wrong when decided — justified modification of the common-law rule of interspousal tort immunity. Id. at 374. Without citing Noonan, the Heino court also acknowledged its duty to modify a court-made rule that was manifestly wrong:
“The rule we consider today is judge-made. If it is no longer valid or appropriate, it is our responsibility to say so.”
Heino, 306 Or at 378. Because the court concluded that an error in the case law justified reconsideration of the common-law rule in accordance with the first G.L. factor, the court in Heino, as in the present case, had no occasion to decide whether the absence of at least one of the G.L. factors would preclude such reconsideration.
That occasion arose in Keltner v. Washington County, 310 Or 499, 800 P2d 752 (1990), which involved the continuing viability of the common-law rule against recovery of contract damages for mental suffering alone. Keltner referred to the passage from G.L., quoted above, as stating a “rule” and a “standard,” Keltner, 310 Or at 505, although G.L. itself never used those terms. Keltner determined that the plaintiffs had failed to establish the presence of any one of the three premises described in G.L. On the basis of that conclusion, the court decided that it had no ground upon which to reconsider the common-law rule. Consequently, the court refused to address the plaintiffs argument that the common-law rule caused injustice in cases in which the breach was *104particularly likely to cause serious emotional disturbance. Keltner, 310 Or at 509-10.
Keltner provoked a dissent from Justice Unis, who argued that the court’s “three premise methodology” in G.L. was too rigid and jeopardized the appropriate judicial consideration of the current validity of the policy premises that undergird common-law rules or doctrines. Justice Unis stated:
“I would jettison this court’s self-imposed rule that precludes it from justifying rules of common law or doctrine in terms of policy. Abandonment of the present decision-making methodology employed by this court, which I advocate, does not mean that this court should ignore the doctrines of judicial restraint and stare decisis, which recognize the need for stability and predictability in the development of the law. The self-imposed rule of judicial restraint earns this court the dubious distinction of being the only state in the union to limit its traditional judicial common iaw-making authority so substantially.”
Keltner, 310 Or at 512-13 (Unis, J., dissenting) (footnote omitted).
The foregoing discussion demonstrates that what began in G.L. as an attempt by the court to summarize a nonexclusive list of the factors that it ordinarily considers when reconsidering a common-law rule became, in Keltner, a rule that barred judicial consideration of the premises for a common-law doctrine unless the party advocating for a change established the presence of one of the G.L. criteria. Justice Unis was correct to criticize the court’s unexplained development of such an inflexible standard for the evaluation of common-law rules and doctrines by Oregon courts.
In my view, the ancient doctrine of stare decisis should govern the court’s reconsideration of common-law rules and doctrines. That doctrine appropriately incorporates elements of both stability and flexibility in the judicial development of the common law. See State ex rel Huddleston v. Sawyer, 324 Or 597, 643, 932 P2d 1145 (1997) (Durham, J., concurring in part and dissenting in part) (noting that the *105two central premises of the doctrine of stare decisis are stability and flexibility); Noonan, 161 Or at 240 (“While the doctrine of stare decisis attaches great weight to precedents, it does not demand that the courts adhere to them if satisfied that they are manifestly wrong.” (Citation omitted.)). Applying that doctrine, this court should evaluate the continuing validity of a common-law rule by considering whether a proper justification supports a modification. Such a justification could include any of the criteria listed in G.L., the manifest error criterion described in Noonan, or any other appropriate justification. As G.L. correctly noted, “judicial fashion or personal policy preference * * * are not sufficient grounds for such a change.” G.L., 306 Or at 59. If the court’s evaluation of a common-law rule leads it to the conclusion that the rule deserves modification, then it is the court’s responsibility to say so. Heino, 306 Or at 378.
I agree with the majority that Crawford v. Roberts, 8 Or 324 (1880), gave inadequate consideration to the effect of the “release of one releases all” rule in contract cases. That is a proper justification supporting modification of that common-law rule. Accordingly, I concur.
Kulongoski, J., joins in this concurring opinion.*106APPENDIX
The “release of one releases all” rule in contract enjoys the following status in the United States:
A. Jurisdictions abrogating by judicial decision the “release of one releases all” rule in contract:
1. Illinois: Grundy County Nat. Bank v. Olsen, 178 Ill App 3d 1003, 1009, 534 NE2d 196, 200 (1989) (noting general rule that a “release of one joint obligor releases all others unless a contrary intent appears from the face of the instrument”).
2. Indiana: Gates v. Fauvre, 74 Ind App 382, 397, 119 NE 155, 160 (1918) (intent of the parties must govern in construing a release, and is to be gathered from the instrument if in writing, and from the circumstances where release relied upon arises otherwise).
3. Iowa: Community S. D. of Postville v. Gordon N. Peterson, Inc., 176 NW2d 169, 175 (Iowa 1970) (court overrules prior common-law holding that release of one releases all; adopts rule that looks to the intent of the parties).
4. Maryland: Shriver v. Carlin & Fulton Co., 155 Md 51, 141A 434, 440 (1928) (intent of parties to an instrument of release dictates the effect thereof); Hartford v. Scarlett Harbor, 109 Md App 217, 290-91, 674 A2d 106 (1996), aff'd 346 Md 122, 695 A2d 153 (1997) (principal rule governing the interpretation of a release, as with other contracts, is to effect the intention of the parties).
. 5. New Jersey: Roseville Trust Co. v. Mott, 85 NJEq 297,96 A 402, 403 (NJ Ch 1915) (giving effect to a reservation of rights in release to one obligor).
6. North Carolina: Smith v. Richards, 129 NC 267, 40 SE 5, 6 (1901) (release of one judgment debtor released other debtors only to extent of their “aliquot parts” of the debt).
7. Oklahoma: Wade v. Tapp, 285 P2d 377, 379 (Okla 1955) (giving effect to express reservation of rights in release).
*1078. Pennsylvania: Joseph Melnick Building & Loan Ass’n v. Melnick, 361 Pa 328, 64 A2d 773, 777 (1949) (giving effect to express reservation of rights in release).
9. Texas: J.M. Hollis Const. Co. v. Paul Durham Co., 641 SW2d 354, 359 (Tex Ct App 1982) (release of one joint and several obligor does not serve to release another).
10. Washington: United Pacific Insurance Company v. Lundstrom, 77 Wash 2d 162, 459 P2d 930, 934 (1969) (release of one joint and several contract debtor does not release others; intent of parties controls in construing release).
B. Jurisdictions abrogating by statute the “release of one releases all” rule in contract:
1. Alabama: Ala Code § 12-21-109 (1975 and Supp 1998) (releases “must have effect according to their terms and the intentions of the parties thereto”); Alabama Farm Bureau Ins. Co. v. Hunt, 519 So 2d 480, 482 (Ala 1987) (intention of parties controls construction of release).
2. California: Cal Civil Code § 1543 (West 1982 and Supp 1999) (“release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution”); Williams v. Reed, 113 Cal App 2d 195, 248 P2d 147, 152-53 (1952).
3. Colorado: Colo Rev Stat §§ 13-50-102,103 (1998) (release of one or more joint debtors “shall be taken and held to be a payment in the indebtedness of the full proportionate share of the debtor so released,” and unreleased joint debtor’s share proportionately reduced); Smith v. Weindrop, 833 P2d 856, 858 (Colo Ct App 1992) (release of one joint debtor “does not affect the liability of remaining joint debtor, except as to the balance of the obligation”).
4. Connecticut: Conn Gen Stat Ann § 52-142 (West 1991 and Supp 1999) (“discharge to one of several joint debtors, purporting to discharge him only, shall not affect the claim of the creditor against the other joint debtors”).
5. Florida: Fla Stat Ann ch 46.015(1) (West 1994 and Supp 1999) (release of joint and several obligor shall not *108release or discharge the liability of any other person who may be liable for the balance of the claim); Stephen Bodzo Realty v. Willits Intern., 428 So 2d 225, 227 (Fla 1983) (court overrules prior common-law rule that release of one joint and several obligor releases all).
6. Hawaii: Haw Rev Stat §§ 483-1 to 483-6 (1993 and Supp 1998) (adopting, with amendments, the Uniform Joint Obligations Act, under which a creditor may release a joint, or joint and several, obligor and reserve fully all rights against other obligors; where the creditor fails to reserve expressly such rights, creditor may still pursue the nonreleased obligor, but the nonreleased obligor is entitled by the statute to certain reductions of the debt).
7. Kansas: Kan Stat Ann § 16-105 (1995 and Supp 1998) (release of one co-obligor does not release other co-obligors jointly or severally liable, “beyond the proper proportion of the debt or demand for which the person released was liable”); Bazine State Bank v. Pawnee Prod. Serv., 245 Kan 490, 781 P2d 1077, 1083 (1989), cert den 495 US 932 (1990) (“when two or more debtors are jointly and severally liable on an obligation, the release of one of the debtors discharges the obligation of the other debtor only to the extent of the consideration paid for said release”).
8. Louisiana: La Civ Code Ann Art 1803 (West 1987 and Supp 1999) (“remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the obligee and one obligor, benefits the other solidary obligors in the amount of the portion of that obligor;” other obligors not released or discharged from liability). Commentary to the Code indicates that this article replaces La Civ Code Art 2203 (1870), which reproduced Article 1285 of the Code Napoleon (one who remits of a debt in favor of one solidary obligor without an express reservation of rights against the other co-obligors is deemed to have forfeited the entire obligation).
9. Maine: Me Rev Stat Ann tit 14 §§ 11-17 (West 1980 and Supp 1998) (adopting, with amendments, Uniform Joint Obligations Act).
*10910. Michigan: Mich Comp Laws §§ 449.153 to 449.155 (1989 and Supp 1998) (settlement or compromise with one joint debtor does not discharge other joint debtors or preclude the creditor from pursuing claim against the other joint debtors).
11. Minnesota: Minn Stat Ann § 548.21 (West 1988 and Supp 1999) (“A creditor who has a debt, demand, or judgment against a copartnership, or several joint obligors, promisors, or debtors, may discharge one or more of such copartners, obligors, promisors, or debtors, without impairing the creditor’s right to recover the residue of the debt or demand against the others, or preventing the enforcement of the proportionate share of any undischarged under such judgment. The discharge shall have the effect of a payment by the party discharged of the party’s equal share of the debt, according to the number of debtors, aside from sureties.”).
12. Mississippi: Miss Code Ann § 85-5-1 (1991 and Supp 1998) (“In all cases of joint or joint and several indebtedness, the creditor may settle or compromise with and release any one or more of such debtors; and the settlement or release shall not affect the right or remedy of the creditor against the other debtors for the amount remaining due and unpaid, and shall not operate to release any of the others of the said debtors.”).
13. Missouri: Mo Rev Stat § 431.150 (Vernon 1992 and Supp 1998) (“It shall be lawful for every creditor of two or more debtors, joint or several, to compound with any and every one or more of his debtors for such stun as he may see fit, and to release him or them from all further liability to him for such indebtedess, without impairing his right to demand and collect the balance of such indebtedess from the other debtor or debtors thereof, and not so released; provided, that no such release shall impair the right of any debtor of such indebtedness, not so released, to have contribution from his codebtors, as is by law now seemed to him.”); Gunter v. Bono, 914 SW2d 437, 439 (Mo Ct App 1996) (“where two or more parties are jointly liable on a contractual obligation, and one party settles with the creditor so as to be released, *110the creditor may still be able to proceed against the other jointly hable party”).
14. Montana: Mont Code Ann § 28-1-1603 (1997) (“release of one of two or more joint debtors does not extinguish the obligation of any of the others unless they are mere guarantors, nor does it affect their rights to contribution”); Sunbird Aviation, Inc. v. Anderson, 200 Mont 438, 651 P2d 622, 626 (1982) (adopting rule of construction based on intent of the parties to the release).
15. Nevada: Nev Rev Stat Ann §§ 101.010 to 101.090 (Michie 1994 and Supp 1997) (adopting, with amendments, Uniform Joint Obligations Act).
16. New York: NY Gen Oblig Law §§ 15-101 to 15-110 (McKinney 1989 and Supp 1999) (adopting, with amendments, Uniform Joint Obligations Act).
17. North Dakota: ND Cent Code § 9-13-03 (1987 and Supp 1997) (“release of one of two or more joint debtors does not extinguish the obligations of any of the others unless they are mere guarantors”).
18. Ohio: Ohio Rev Code Ann §§ 1779.09 to 1779.11 (Anderson 1997 and Supp 1998) (a compromise with one joint debtor does not preclude creditor from pursuing claim against other joint debtors).
19. Rhode Island: RI Gen Laws §§ 7-12-4 to 7-12-10 (1992 and Supp 1998) (a compromise with one joint debtor shall not be construed so as to discharge the other joint debtors, nor to impair the right of the creditor to proceed against the other joint debtors).
20. South Carolina: SC Code Ann §§ 32-9-10 to 32-9-30 (Law Co-op 1991 and Supp 1998) (“Any joint debtor may make a separate composition with his creditor as prescribed in this section. Such composition shall discharge the debtor making it and him only,” and such composition shall not impair the creditor’s rights against the other joint debtors, unless such intent appears affirmatively upon the face of the instrument.).
21. South Dakota: SD Codified Laws Ann § 20-7-12 (1995 and Supp 1998) (“release of one of two or more joint *111debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution”).
22. Tennessee: Tenn Code Ann § 24-7-106 (1980 and Supp 1998) (releases are to be given the effect intended by the parties); Kreutzmann v. Bauman, 609 SW2d 736, 737-39 (Tenn 1980) (the statute, which is confined to contract actions, “changed the old technical rule of common law, whereby release of one co-obligor released automatically another co-obligor”).
23. Utah: Utah Code Ann §§ 15-4-1 to 15-4-7 (1996 and Supp 1998) (adopting, with amendments, Uniform Joint Obligations Act).
24. Vermont: Vt Stat Ann tit 12 § 5054 (1973 and Supp 1998) (“creditor having a debt or demand against a partnership or several joint obligors or promisors, may discharge one or more of such partners, obligors or promisors, without impairing his right against the others as to the residue of his debt or demand”).
25. Virginia: Va Code Ann § 11-10 (Michie 1993 and Supp 1998) (“creditor may compound or compromise with any joint contractor or co-obligor, and release him from all liability on his contract or obligation, without impairing the contract or obligation as to the other joint contractors or co-obligors”); First & Merchants National Bank v. Bank of Waverly, 170 Va 496, 197 SE 462, 465 (1938) (noting that legislature, by statute, changed common-law “release of one releases all” rule; statute held to not apply to tort actions).
26. Wisconsin: Wis Stat Ann § 113.01 to 113.11 (West 1997 and Supp 1998) (adopting, with amendments, Uniform Joint Obligations Act).
27. District of Columbia: DC Code Ann § 16-2106 (1997 and 1998 Supp) (“Any one of several joint debtors when their debt is overdue, may make a separate composition or compromise with their creditors, with the same effect as is provided in the case of parties by chapter 3 of Title 41 [discharge of obligation of one partner does not discharge other partners, nor does it impair creditor’s *112rights against those not discharged, DC Code Ann §§ 41-301 to 41-304 (1998)].”).
C. Jurisdictions retaining the “release of one releases all” rule in contract:
1. Arkansas: Tancred v. First Nat. Bank of Ft. Smith, 124 Ark 154, 187 SW 160, 162 (1916); but see Ark Code Ann § 16-61-204 (1987 and Supp 1997) (release of one joint tortfeasor does not release others, unless release so provides).
2. Georgia: Ga Code Ann § 13-4-80 (1982 and Supp 1998) (“When a creditor releases another who is bound jointly with * * * a debtor * * * a release results by operation of law.”). But see Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga App 198, 335 SE2d 417, 419-20 (1985) (the “[l]aw of this State does not allow a plaintiff fully to settle with (release) one joint obligor and agree not to enforce a judgment against him, while reserving a right to pursue others,” but judgment creditor’s release of one obligor did not release the other obligor, where creditor did not receive full satisfaction; court construes the agreement as a covenant not to enforce the judgment); Weems v. Freeman, 234 Ga 575, 216 SE2d 774, 775 (1975) (“where the right to sue [other joint tortfeasors] has been reserved and the plaintiff has not received full satisfaction, the agreement will be construed to be a covenant not to sue because of the manifest intent of the parties”).
3. Kentucky: Lewis v. Browning, 4 SW2d 734, 735 (Ky 1928) (“valid release of one joint obligor in a writing without the consent of the other or others will likewise release them”); but see Ky Rev Stat Ann § 411.182(4) (Baldwin 1998) (“release, covenant not to sue, or similar agreement entered into by a claimant and a person liable, shall discharge that person from all liability for contribution, but it shall not be considered to discharge any other persons liable upon the same claim unless it so provides”).
4. Massachusetts: Eastern Elec. v. Taylor Woodrow Blitman Const., 11 Mass App 192, 414 NE2d 1023, 1029-30 (1981) (noting general rule that the voluntary *113discharge or release of one joint obligor discharges other joint obligors, but in dictum calling for placement of limits on the application of that common-law rule); see also Mass Gen Laws Ann ch 231B, § 4 (1986 and Supp 1998) (release or covenant not to sue or not to enforce judgment given in good faith to one of two or more persons liable in tort for the same injury shall not discharge any of the other tortfeasors from liability for the injury unless its terms so provide, but shall reduce the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; release shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor).
5. New Mexico: Wood v. Eminger, 44 NM 636, 107 P2d 557, 560 (1940) (release of one codebtor releases the other codebtors); Sunwest Bank of Farmington v. Kennedy, 109 NM 400, 785 P2d 740, 741 (1990) (stating that “release of one releases all” is general rule regarding release of a co-obligor).
6. West Virginia: Rutherford v. Rutherford, 55 W Va 56, 47 SE 240, 241-42 (1904) (release of one of two joint contractors releases both); but see W Va Code § 55-7-12 (1966 and Supp 1998) (release to one or more joint tortfeasors shall not inure to the benefit of another such tortfeasor, and shall be no bar to an action or suit against such other joint tortfeasor for the same cause of action to which the release relates).
7. Wyoming: McCord-Brady Co. v. Mills, 8 Wyo 258, 56 P 1003, 1006 (1898) (citing in dictum “release of one releases all” rule); but see Wyo Stat § 1-1-119 (1977 and Supp 1998) (release given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death does not discharge any of the other tortfeasors from liability, unless the terms of the release so provide).
*114D. No authorities found regarding “release of one releases all” rule in contract:
1. Alaska: But see Alaska Stat § 09.17.080 (1998) (establishing that liability in tort among persons responsible for the same injury is several only); Young v. State, 455 P2d 889, 893 (Alaska 1969) (abrogating “release of one releases all” rule in tort).
2. Arizona: But see Ariz Rev Stat Ann § 12-2504 (1994 and Supp 1998) (release or covenant not to sue given in good faith to one of two or more joint tortfeasors does not discharge any of the other joint tortfeasors from liability unless its terms so provide; the released tortfeasor is discharged from all liability for contribution)
3. Delaware: But see Del Code Ann tit 6 § 2701 (1993 and Supp 1998) (establishing default position of joint and several liability for joint creditors).
4. Idaho: But see Idaho Code § 6-805 (1998) (release of one joint tortfeasor does not release others unless the release so provides); Tuttle v. Wayment Farms, Inc., 131 Idaho 105, 952 P2d 1241 (1998) (applying statute).
5. Nebraska: But see Neb Rev Stat § 25-21, 185.11 (1995 and Supp 1998) (release, covenant not to sue, or similar agreement entered into by a claimant and one joint tortfeasor shall not discharge other persons liable upon the same claim, unless the agreement so provides); Scheideler v. Elias, 209 Neb 601, 309 NW2d 67, 73-74 (1981) (release of one joint tortfeasor does not discharge others, unless it is so agreed).
6. New Hampshire: But see NH Rev Stat Ann § 507:7-h (1997 and Supp 1998) (release or covenant not to sue given in good faith to one joint tortfeasor discharges that person in accordance with its terms and from all liability for contribution; does not discharge other joint tortfeasors unless agreement expressly so provides, changing prior law as stated in Masterson v. Berlin St. Ry., 139 A 753, 755 (NH 1927) (a release to one joint tortfeasor presumed to release all, unless a contrary intent shown by the instrument)).