dissenting.
I do not agree with the majority’s reading of the trial court’s statement on summary judgment, its characterization of the issues on appeal or its relegating to a footnote the recent controlling Supreme Court opinion in Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993). I dissent.
*175Defendant brought his motion for summary judgment on the ground that he owed a duty only to his patients. Plaintiffs’ countering argument was that allegations that defendant negligently prescribed Xanax to Shonkwiler are sufficient to present a question for the jury under the foreseeability analysis of Fazzolari v. Portland School District No. 1J, 303 Or 1, 734 P2d 1326 (1987). The trial court granted summary judgment for defendant. However, I do not agree with the majority that, in reaching that conclusion, “the language used by the trial court is ambiguous,” 124 Or App at 170 n 2, or with the majority’s persistence in analyzing only the issue of whether a doctor ever owes a duty to persons other than the patient.
The trial court applied the foreseeability standard of whether defendant’s conduct, which resulted in harm to plaintiffs, was unreasonable under the circumstances and the risk of harm to the class of persons to whom plaintiffs belong was foreseeable. Fuhrer v. Gearhart By The Sea, Inc., 306 Or 434, 437, 760 P2d 874 (1988); Donaca v. Curry Co., 303 Or 30, 734 P2d 1339 (1987); Fazzolari v. Portland School Dist. No. 1J, supra. Under that standard, it concluded that plaintiffs here did not come within the protected class of persons. It stated:
“If you read the opinion in the Fazzolari case and then in the Donaca case, the key language to me is whether the conduct that plaintiff complains about of the doctor unreasonably caused a foreseeable risk of harm to an interest of the kind for which the plaintiff claims damages, and to me that means the protected group for which the plaintiff claims damages, and the difficulty I’m having with this case is the link that the plaintiff is making from Shonkwiler going out and using more of the pills than she should have or perhaps just using the pills if she was using them in combination with other pills and getting in a vehicle and injuring someone with the vehicle. That’s the difficult part (unintelligible) and I’m not prepared to say that this theory [from Fazzolari and Donaca] reaches that far. I’m satisfied that although the result here was tragic, that the remedy is not in a negligence action against the doctor, because if you follow that theory to its logical conclusion, then a doctor has to protect against that next step from every patient, that being the patient misusing the pills or using them and then going to work or getting in a car or whatever else that might cause some risk of *176harm to someone else and I’m not satisfied that these cases have expanded negligence law in this state to that degree and I’m going to grant the motion for summary judgment.”
The majority glosses over the fact that this is plaintiffs ’ appeal. Plaintiffs continue to argue that the correct analysis to determine defendant’s liability is foreseeability, but they do not explain why the court’s foreseeability analysis was erroneous. Neither does the majority, stating only conclusorily that, “if the trial court had granted summary judgment on the basis of the unforeseeability of plaintiffs’ injuries, that would have been error.” 124 Or App at 170 n 2.1 The majority also ignores its own admonition that our role, “[o]n review of a summary judgment, [is to] determine whether the moving party is entitled to judgment as a matter of law.” 124 Or App at 169. As a matter of law, the trial court was correct under the Supreme Court’s opinions on foreseeability before Buchler and even more correct under Buchler.2
In Buchler, the plaintiffs decedent had been killed by a prisoner who had escaped from a work crew of a forest work camp. The prisoner had driven away in the state’s van, in which the keys had been left in the ignition, and had later stolen a gun with which he shot the decedent. The Supreme Court held that the Corrections Division could not be liable for the actions of the prisoner.3 Buchler controls here and demonstrates that this case should be affirmed.
This case is before us in the same procedural posture as Buckler was before the Supreme Court: The defendant had *177been granted summary judgment.4 The court affirmed that judgment by looking to the allegations of the complaint and the evidence established on the motion for summary judgment.5 We should do the same.
Here, after evidence was presented and summary judgment granted, plaintiffs filed amended complaints nunc pro tunc. They rely on those amended complaints. The complaints allege that defendant was negligent in giving Shonkwiler a prescription for 100 tablets of Xanax on June 14,1988, and in authorizing the drug store to dispense 100 tablets of Xanax to Shonkwiler on June 17,1988. Plaintiffs’ position is that those allegations are sufficient to create a question for the jury. The majority, by focusing only on the issue of a physician’s “duty” to nonpatients, apparently agrees. I do not.
In support of their position that a defendant’s liability for the acts of a third party is a question for the jury, plaintiffs cite Kimbler v. Stillwell, 303 Or 23, 27, 734 P2d 1344 (1987):
“The fact that a plaintiffs injury was inflicted by the intentional, even criminal, act of a third person does not foreclose liability if such an act was a foreseeable risk facilitated by the defendant’s alleged negligence.”
In Buchler, the Supreme Court expressly held that “Kimbler should not be considered as precedent in the future.” 316 Or at 513. Its analysis in reaching that conclusion applies here.
The Supreme Court characterized the above language from Kimbler as the “ ‘facilitation rationale’ ” and described the limitations of its application:
*178“[W]e think the breadth of Kimbler’s holding cannot be supported by a foreseeability analysis that requires that a defendant, to be liable, must have unreasonably created the risk of the sort of harm to plaintiff that befell him. Certainly it cannot be supported by such analysis on a motion for summary judgment, where there are no claimed facts showing defendant’s knowledge of unreasonable risk of danger to the particular plaintiffs involved. In the instant case, there also is no evidence to show any such knowledge by defendant.
“We decline to apply the ‘facilitation’ rationale of Kimbler v. Stillwell, supra, 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 the harm so as to support liability for it.” Buchler v. Oregon Corrections Div., supra, 316 Or at 511. (Footnote omitted; emphasis in original.)
Any decision to prescribe medication carries a risk that the patient will abuse or misuse the medication, resulting in injurious consequences. Here, before defendant is to be held liable for the consequences of Shonkwiler’s intervening act of driving under the influence of intoxicants, plaintiffs must allege facts to show the link between the prescribing of the medication and the foreseeable consequence. See Buchler v. Oregon Corrections Div., supra, 316 Or at 513. Plaintiffs alleged that, when Shonkwiler saw defendant, she exhibited symptoms that included psychotic illness, depression, chronic bipolar mental disorder and chronic drug use. However, there is no allegation in plaintiffs amended complaint that a prescription for Xanax was medically incorrect for a person displaying those symptoms. There is no allegation that defendant knew, or should have known, that Shonkwiler would *179abuse Xanax and drive or would abuse Xanax along with other drugs and drive. There is no allegation that defendant failed to warn Shonkwiler not to drive or failed to instruct her as to the correct use of Xanax.6 Here, as in Buckler, there are no claimed facts that show that defendant had knowledge of an unreasonable risk of danger to the particular plaintiffs involved and no evidence that he had such knowledge. The trial court was correct, as a matter of law. I would affirm.
The majority does not address defendant’s claim that the judgment should be sustained “even under theFazzolari foreseeability analysis,” because he had no duty to prevent Shonkwiler from driving.
I could not disagree more with the majority’s statement that “[njothing in Buckler * * * affects our decision in this case.” 124 Or App at 174 n 6. I cannot understand how the Supreme Court’s most recent analysis of the concepts of “duty ” and “foreseeability” can possibly not affect our analysis here. See Buchler v. Oregon Corrections Div., supra, 316 Or at 509.
In its analysis, the Supreme Court notes the general rule of non-liability for the conduct of others in the absence of a special relationship between the defendant and the plaintiff. Restatement (Second) Torts § 315 (1965). In Buchler, a jailer had custody of a prisoner, and the court adopted section 319 as the law of Oregon. That section delineates the custodian’s duty to control the conduct of others. However, the court did not preclude liability on the basis of the common-law rule in section 315. Rather, it proceeded to analyze two claims of “general negligence” under the foreseeability/facilitator analysis discussed below.
I am perplexed by the majority’s statement that “[t]he dissent is correct that, at the trial court level, Buchler was resolved by summary judgment, as was this case. It does not contend that the comparison goes any further. We agree.” 124 Or App at 174 n 6.1 do not know how to make it clearer that I do not find anything in the way this case was presented to the trial court, decided there, or argued on appeal that precludes our addressing plaintiffs’ arguments regarding foreseeability. In short, I contend that the comparison between this case and Buchler goes so far as for the latter to be controlling.
The majority asserts that, on summary judgment, we “do not review the sufficiency of the pleadings.” 124 Or App at 174 n 5. However, that is what the Supreme Court did in resolving Buckler. It assessed the “claimed facts” and the “evidence.” See Buchler v. Oregon Corrections Div., supra, 316 Or at 513.
Plaintiffs’ original complaint made many of those allegations. However, plaintiffs did not replead those allegations, and they stress that this is not a failure to warn case.