dissenting.
The majority holds that a restaurant can be held liable for common law negligence because its adult employee fell asleep while driving home from work, crossed the center line into the oncoming lane of traffic and collided with plaintiffs vehicle. The reason for the restaurant’s liability: It accepted the employee’s offer to work overtime, and, according to the majority, thereby became responsible for the risk of injury caused by the employee’s state of fatigue. That holding is without precedent in the State of Oregon. It makes all *534employers potentially liable for their employees’ off-premises negligence when an employee becomes tired as a result of working. That has never been the law in Oregon nor should it be now.
The majority need have gone no further than defendant’s motion for a directed verdict in deciding this case. Defendant is entitled to a directed verdict as a matter of law because of certain uncontroverted facts.1 First, Theurer was not a minor, but an adult at the time of the accident. He was 18 years old and serving in the National Guard. Defendant did not owe any special responsibility to him because he also attended high school. See ORS 109.510. The fact that he was a student working part time and had over-extended himself physically is of no import to defendant’s liability. No rule of negligence requires an employer to inquire into the private lives of its adult employees to determine if, on a given occasion, the employee is not getting enough sleep.
Second, Theurer volunteered to work the clean-up shift. He was not sought out by defendant and “required” to work on April 5, 1988. Several days before April 5, defendant’s manager encountered a problem. He had a special shift scheduled to work on the early morning hours of April 5. One of the persons who had been scheduled for the shift had been suspended for disciplinary reasons. Originally, Theurer was not scheduled to work on that shift. A member of the management team talked to 10 or 11 employees, including Theurer, and asked if there was a “volunteer” who could fill the vacancy on the shift caused by the suspension. His inquiry was not directed to any particular person. There is no evidence that any employee, including Theurer, was pressured in any way to work the shift. Theurer volunteered to work the shift. The manager in charge of scheduling noticed that *535Theurer was scheduled to work for four hours on April 4. He asked Theurer if Theurer would be able to “handle the two shifts,” and, according to the manager, Theurer responded, “Yes, it wouldn’t be a problem.” The manager testified that he also discussed with Theurer about getting some rest between shifts, and Theurer said “something about catching a nap in between.” Once Theurer volunteered, he was scheduled for that shift.2
Third, Theurer never asked to be relieved from working the shift either before the shift started or during it; nor is there any evidence that defendant refused such a request. On Sunday, April 3, 1988, Theurer worked five and one-half hours for defendant, from 6 p.m. to 11:30 p.m. On April 4, he got up at 6:30 a.m. and left for school at about 7:15 a.m. However, when he got to school, he, his brother and a friend skipped the first four class periods of school. Theurer returned to class for the rest of the afternoon, arriving at defendant’s to begin work at 3:30 p.m. He worked until 7:30 p.m. At that time, he told a friend that he was going on a date. Neither Theurer’s supervisor nor anyone at the restaurant knew whether Theurer had rested before he arrived to begin the midnight shift. Theurer and his fellow employees finished the clean-up project at approximately 5 a.m. However, Theurer did not go home after the shift. Instead, he again remained voluntarily at the restaurant until 8 a.m. to open the grill. Sometime that morning, he requested, for the first time, to be relieved from a shift; the one that he was scheduled to work later that day. Defendant granted his request, and Theurer left the restaurant to go home.
*536Fourth, Theurer was not on defendant’s business premises and was on his own time when he drove home from work that morning. Theurer was not acting on defendant’s behalf, nor did defendant have actual control of or the right to control Theurer’s driving conduct or where he went after he got off work. Moreover, no omission or affirmative act by defendant prevented Theurer from choosing to have someone pick him v. after work, or to take a nap in his car before driving home, or some other preventive measure. The accident occurred about 20 minutes after Theurer left work, at a location miles from where defendant conducted business. There is no evidence that plaintiffs presence on the road had any connection with the business of the restaurant. Fate would have it that he was one of many motorists traveling the highway that morning, and it was his vehicle that was in the way when Theurer fell asleep and his car crossed over the center line.
It is in this factual context that plaintiff brought his claim of negligence against defendant. Initially, plaintiff alleged two specifications of negligence:
“Defendant was negligent in one or more of the following particulars which was a cause of damage to plaintiff:
“a. requiring Theurer to work too many hours without adequate rest; and
“b. permitting Theurer to drive a car when defendant knew or should have known that Theurer could not safely drive a car.”
After plaintiff put on his case in chief, defendant moved for a directed verdict on the basis that plaintiff had failed to prove a cognizable claim of negligence.
Apparently, plaintiff knew he was in trouble. He had not proven that defendant ‘ ‘required’ ’ Theurer to work on the clean-up shift. Moreover, he was probably aware that there is no traditional concept of negligence liability which imposes the responsibility on an employer to prevent an employee from operating his own car once the employee’s work shift is completed. (A theory that the majority’s holding necessarily endorses if an employer is to avoid responsibility for its employee’s negligence under circumstances like these.) *537Instead, to counter the motion for the directed verdict, plaintiff moved to delete the above specifications of negligence and in lieu thereof, asked leave to allege:
“Defendant was negligent in working Theurer more hours than was reasonable under the circumstances when defendant knew or in the exercise of reasonable care should have know that Theurer would operate a motor vehicle and be a hazard to himself and to others.”
After hearing argument from the parties, the trial court granted plaintiffs motion to amend the complaint and, thereafter, denied defendant’s motion for a directed verdict.
It is not clear from the parties’ arguments or from the majority opinion what traditional concept of common law negligence is implicated by the allegation that defendant “worked” Theurer “more hours than was reasonable under the circumstances” or how proof of that allegation renders an employer hable for the employee’s off-premises, nonwork-related negligence. If the allegation is meant to imply that Theurer had no choice but to work the shift, that, of course, is not the fact of the matter. Beyond that, there are only two potential points in time when defendant could be deemed to have exposed plaintiff to a risk of harm for having “worked” Theurer too many hours. The first point in time is when Theurer volunteered to work several days before April 5. The second point in time is on April 5.
With those points of time in mind, I turn to plaintiffs theory of the case. He argues that he
‘ ‘proved that McDonald’s was actively at fault by its scheduling practices in overworking Theurer, and then permitting him to drive when it knew or should have known of his exhaustion-induced impairment. Thus, the proper focus of the case, and the one presented below is on McDonald’s managers, who scheduled Matthew Theurer beyond that which was reasonable. These managers were on [sic] premises when they committed their negligent acts, and they did so within the course and scope of their employment. Thus, the scope of McDonald’s liability for injuries caused by them must be analyzed under [Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987)] just as it would be if they had negligently disposed of grease on [sic] premises, the grease found its way by the force of gravity off [sic] premises to a roadway, and the plaintiff was injured when his car skidded in the grease.” (Emphasis in original.)
*538As I have pointed out, plaintiffs argument that defendant was negligent in permitting Theurer to drive on April 5 is not supported by any specification of negligence left in the case. That allegation was deleted in response to the motion for a directed verdict. That leaves plaintiffs argument about defendant’s “scheduling practices.” The only time defendant did any scheduling germane to this case was several days before April 5. Plaintiff invokes the rule of Fazzolari concerning defendant’s conduct on that day.
In Fazzolari, the court said that the law does not provide a remedy in common law negligence for an injured plaintiff unless the kind of harm that the plaintiff suffered arises from “unreasonable” conduct that creates a foreseeable risk of harm to the particular plaintiff in the case. 303 Or at 17. Prior to Fazzolari, negligence had always been expressed in Oregon in terms of a breach of “duty of care” that was owed under the existing circumstances. The court explained in Buckler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993), that there is no substantive difference between the two tests; rather it is a semantical one:
“The message of part of the discussion in Fazzolari is quite simple. ‘Duty’ and ‘foreseeability’ are each but verbal tools used in explanatory reasoning to answer the legal question, ‘Should defendant pay for plaintiffs harm?’ In either formulation, the use to which courts and litigants put the question remains the same. * * * 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.” 316 Or at 509.
The issue then is: Should defendant pay for plaintiffs harm because defendant scheduled Theurer to work on the clean-up shift? The majority bases its analysis on the facts that defendant endeavored to avoid scheduling double shifts for its employees, scheduled high school students to avoid working late hours, and knew that its employees previously were involved in automobile accidents as a result of falling asleep while driving home after working late shifts. Based on these facts, the majority concludes that, because the risk of harm to plaintiff resulting from defendant’s conduct was “foreseeable,” the issue of defendant’s liability was a matter *539for the jury. Thus, it was proper for the trial court to deny the motion for a directed verdict.
The majority’s analysis is wrong because the facts relied on by it are not controlling unless defendant’s conduct created an “unreasonable” risk of harm to plaintiff. In the context of this case, the question is whether defendant created an unreasonable risk of harm to every person on the highway that morning when it scheduled Theurer to work. That question must be answered in the light of the uncontroverted facts that Theurer was an adult employee, that defendant did not require him to work the shift, that Theurer assured defendant’s manager that he would rest between shifts and that he would be able to handle the shift physically, that Theurer never asked to be relieved from the shift, and that the harm to plaintiff occurred off defendant’s work premises as a result of an activity over which defendant had no right of control. By holding defendant responsible for the safety of all persons on the roadway, the majority makes “general foreseeability” the test for determining whether defendant’s conduct is deemed “negligent.”
The majority says that I read Buckler as having overruled Fazzolari. It is mistaken. What Buckler did was to explain that Fazzolari was not intended to mean that every common law negligence case goes to the jury simply because, in the chain of causation, certain conduct facilitated the harm that befell the plaintiff. Thus, “general foreseeability” is not the proper focus under the Fazzolari standard. That proposition is made clear by the Supreme Court’s overruling of its holding in Kimbler v. Stillwell, 303 Or 23, 734 P2d 1344 (1987). In Kimbler, the defendant owned a store in which it kept guns and ammunition for sale in public view. A thief broke into the store, stole a gun, transported the gun off the store premises, and used it to kill the plaintiffs decedent. The court held that the complaint stated a claim in negligence because it alleged that it was foreseeable that when a store kept firearms in public view, a thief could steal one and use it to injure others. Therefore, the failure to employ more effective methods of preventing theft could constitute negligence because the defendant “facilitated” a foreseeable harm.
In Buckler, the court held that Kimbler was wrongly decided because its facts did not bring it within traditional common law negligence liability concepts.
*540“Because the store is * * * being charged with responsibility for all intervening intentional criminal conduct that might conceivably occur, we 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.” 316 Or at 511. (Emphasis in original.)
The court also noted,
“Some have read a message into the Fazzolari trilogy that others do not find there. The assumed message was that all negligence claims based on general foreseeability of a plaintiffs harm would reach the jury. We do not think that the trilogy of decisions supports that reading of them. Our treatment of the Kimbler leg of the trilogy in this case should dispel any lingering doubts on that score.” 316 Or at 511 n 8.
The holding of Buckler is that the “facilitation” of the risk of harm in terms of foreseeability is not enough by itself to get a common law negligence case to a jury. 316 Or at 511. The majority says, “There is, however, no such language in Buckler.” See 133 Or App at 521 n 1. It would confine the rule of Buckler to cases involving an intervening criminal act. Although Theurer was never charged -with a crime because he died as a result of the accident, conceivably he could have been charged with criminal assault under ORS 163.160 or a traffic offense on these facts. Regardless, the point is that, here as in Buckler and Kimbler, there must be evidence that the defendant’s conduct also unreasonably created a risk of the type of harm that befell the plaintiff. That pre-requisite necessarily requires the application of recognized community standards of care to the defendant’s conduct, a function reserved for the court and to be decided as a matter of law. See 316 Or at 509.
That inquiry involves considerations of public policy3 which may or may not lead to the conclusion that a *541particular defendant is liable for the plaintiffs harm. For instance, in Weiner v. Gamma Phi, ATO Frat., 258 Or 632, 458 P2d 18 (1971), the plaintiff was injured while riding in a vehicle being driven, on behalf of a fraternity, by an intoxicated minor after a fraternity party. Defendant Kienow, a member of the fraternity, knew of the party and that minors would be attending. Nonetheless, he purchased alcoholic beverages for the purpose of making them available to the party and had them delivered to the location where the party was to be held. The court declined to impose liability as to him, pointing out:
“Considering then, the allegations of the complaint as they apply to defendant Kienow, it is our opinion that they are not sufficient to express a breach of duty to plaintiff in this case. ‘Duty’ in the sense we use it here is, as Prosser has described it, ‘an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ Prosser, The Law of Torts 333 (3rd 1964). We are faced with such a problem of policy formulation in this case.
“As we have already indicated, there may he circumstances under which a person could be held liable for allowing another to become dangerously intoxicated. However, we feel that liability should not be extended to one who acts only as a conduit in providing alcohol to those who directly serve it to others. A host has a choice of serving alcohol to whomsoever he pleases. In making that choice, he may decide to serve the alcohol illegally or under circumstances which create an unreasonable risk of harm to others. We do not think that the harmful consequence of that choice should be visited upon another who has no part in making it. And we take this view even where the one supplying the alcohol might have reason to believe that the host is likely to make an unwise choice in *542dispensing it to others. The complaint does not allege that Kienow had any control over the direct dispensation of the alcohol at the party. We hold, therefore, that the demurrer to the complaint insofar as it relates to defendant Kienow was properly sustained.” 258 Or at 640.
Thus, the task of this court is to evaluate the policy considerations that underlie the imposition of liability for defendant’s conduct. In my assessment, those considerations dictate a holding as a matter of law that defendant’s conduct at the time that it accepted Theurer’s offer to work was not unreasonable. It was Theurer’s choice to volunteer to work on April 5. Defendant had no part in that choice other than to extend the opportunity to him to work. Moreover, to reject Theurer’s offer would have required the manager to predict several days in advance what Theurer’s physical state would be on April 5 disregarding Theurer’s promise that he would rest between shifts. Neither the majority nor plaintiff can point to any precedent that establishes a cognizable community standard of care which requires an employer to not take its adult employees at their word under such circumstances. The majority says, “defendant was much like a bartender who served alcoholic beverages to a visibly intoxicated person who then caused an automobile accident that harmed another.” 133 Or App at 526-27. That is an inapt comparison. The proprietors of fast food restaurants in Oregon will be surprised to learn that scheduling an employee to work an extra shift after he volunteers carries with it the same legal consequences as the inherent hazard of serving alcoholic beverages to an intoxicated patron. The legal responsibility to determine the future physical condition of an employee to perform a volunteered task in the future necessarily lies with the employee since he, and only he, can control his activities to avoid excessive fatigue at that time. Additionally, the majority’s holding makes employers, in their scheduling decisions, responsible for anticipating what their employees’ off-premises activities will be after work; a responsibility of enormous implications and proportions. An example to consider: Every employee in every employment at some time experiences fatigue while working, including the members of this court. Inasmuch as our work schedule is determined approximately 30 days in advance, how would the docket *543coordinator reasonably anticipate our ability to drive home safely after a day of argument next month?
Common law negligence has as its source traditional, well established community standards of care. As I have pointed out, plaintiffs theory is not based on the violation of such a standard. Moreover, apart from standards of common law negligence, if the majority opinion arises from a value judgment about when and to whom employers should be responsible for their employees’ off-work negligence, then it has no authority to make that kind of social policy decision. The task of determining that kind of tort responsibility for allowing employees to work overtime is properly left to the legislature.
In summary, the majority opinion’s adherence to a “general foreseeability” test results in grave consequences to the employers of this state. It improperly articulates a common law negligence standard that causes employers to be exposed to previously hereto unrecognized liability for the negligence of their employees off the work premises and requires them to protect those who lack any involvement with defendant’s work activity miles away from the work premises. In effect, the opinion says to Oregon employers, “Do not schedule your employees in a manner that will cause fatigue, because if you do, you risk liability for negligence in the event that your employee acts in a negligent manner off-premises and after work.” That is not the law of this state and it cannot be unreasonable conduct for an employer to accept an offer from an adult employee, made days in advance of the shift, to work overtime, insofar as the safety of motorists is concerned after the employee gets off work. Because the majority opinion extends the duty of care owed to the general public by employers in the scheduling of their employees’ work shifts to beyond any reasonable boundary, I dissent.
Richardson, Deits and De Muniz, JJ., join in this dissent.
The majority says that I have put a “spin” on the evidence to which defendant is not entitled because plaintiff is entitled to every reasonable inference that may be drawn from the evidence. 133 Or App at 526.1 don’t quarrel with the proposition of law that it relies on, and I have diligently endeavored to apply it to this case. The facts recited in this opinion are uncontroverted unless specifically qualified in the opinion. Simply because there are other facts from which liability could arise under different circumstances, does not mean that the trial court or we are to abrogate our responsibility to determine whether, when the evidence is considered as a whole in the light most favorable to the plaintiff, defendant is entitled to a directed verdict on these facts. Specifically, we must decide whether as a matter of law defendant’s conduct was unreasonable in the light of the kind of harm that befell plaintiff.
The majority says:
“The evidence, taken in the light most favorable to plaintiff, shows that Theurer did not, out of the blue, volunteer to take three shifts in one 24-hour period. Defendant affirmatively asked him to work those hours. Moreover, the evidence shows that defendant—not its employees—generally controlled all work assignments and that defendant penalized its employees for not working as assigned.” 133 Or App at 526.
I do not understand what the majority means when it says that Theurer did not volunteer “out of the blue.” The facts are as described. Theurer was among the group of employees of whom defendant asked if there was a ‘ ‘volunteer. ” There is no evidence that any employee had ever been penalized by defendant for not volunteering. The only evidence of “penalties” is that, if an employee desired not to work a particular shift for a “month or two,” it could be difficult to obtain more hours at a later time. Also, if an employee once scheduled on a shift requested a change, it could be difficult to regain the lost hours on a different shift.
The majority suggests that the argument that defendant’s conduct did not constitute cognizable negligence as a matter of law was not raised below. See 133 Or App at 527. Defendant’s counsel told the court,
“[Ejmployment is a matter of contract between two parties. If there are not statutes that apply, I can contract the work for somebody for 36 hours straight. I’m not violating any law. I’m not being mistreated by the other party; I’m voluntarily doing it. If the two parties want to contract that way, and many times they do, that doesn’t create fault on the part of one party for an accident that occurs after the employment ceases.
*541“ * * * *
“What I’m really getting at is there’s no breach of duty because Matt Theurer was controlling his own destiny. We didn’t have any duty to watch out for him after he left work.
“ * * * *
“There are some cases where you might have some affirmative act where we take a step to do something that’s clearly wrong, and I think that creates liability. Under the common law, I don’t think if he agrees to work 36 hours straight and we say, okay, he can do it, I don’t think there’s liability.” (Emphasis supplied.)
Clearly, defendant was making a policy argument under common law theory that employers should not be considered negligent under these circumstances.