concurring.
Given the way the parties have raised and framed the issues,1 the majority’s result is correct. I write separately to express my view that, in cases like this, involving liability for the tortious acts of third parties, liability should be determined solely by reference to the standards described in the Restatement (Second) of Torts, sections 315 and 319 (1965), without reference to any alternative theory of “reasonable foreseeability.”
Section 315 of the Restatement provides:
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Section 319 describes one “special relation” that gives rise to an exception to the general rule of section 315:
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Thus, section 315 describes a general rule of noreliability, subject to a few specifically defined exceptions. To hold that a party who cannot establish the existence of a “special relation” under section 319 can, nevertheless, prevail under a theory of general foreseeability, defeats the general principle of nonliability expressed in section 315. See Buchler v. State of Oregon, 316 Or 499, 505, 853 P2d 798 (1993) (“It appears that liability under section 319 is an exception to a general rule of non-liability for the conduct of others.”).
Moreover, permitting plaintiffs who cannot prevail under section 319 to recover under open-ended principles of *227reasonable foreseeability makes no sense legally or practically. Why would, or should, a plaintiff ever attempt to establish liability under the strictures of section 319 when the benign “reasonable foreseeability” under Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987), is available?
I acknowledge that, in Faverty v. McDonald’s Restaurants, 133 Or App 514, 892 P2d 703 (1995), rev den 326 Or 530 (1998), a majority of this court took the contrary view in an analogous context — i.e., that notwithstanding section 315 and the plaintiffs failure to prove the existence of a “special relation” between the defendant employer and the tortfeasing employee under Restatement (Second) of Torts section 317,2 the plaintiff could, nevertheless, prevail under principles of general foreseeability:
“The linchpin of defendant’s argument is section 315, which states a general rule of nonliability for failing to control the conduct of third persons. It applies to all persons, unless a special relation gives rise to a duty to control the conduct of the third person. By demonstrating that the special relation exception does not apply in this case, defendant asserts that it is entitled to rely on the general rule of nonliability stated in section 315. The linchpin, however, will not support the weight of defendant’s argument.
“Accepting, for the sake of argument, that section 317 does not apply, defendant is not entitled to limit its duty to plaintiff by invoking section 315. The limitation of section 315 does not arise out of any particular status, relationship *228or statutory standard of conduct. It is a standard that, according to the Restatement (Second) of Torts, applies to all persons. However, under Fazzolari, unless a defendant invokes a special status or relationship, or is subject to the general duty to avoid conduct, it is subject to the general duty to avoid conduct that unreasonably creates a foreseeable risk of harm to a plaintiff. Fazzolari, 303 Or at 17; see also Fuhrer v. Gearhart By The Sea, Inc., 306 Or 434, 438, 760 P2d 874 (1988).” Faverty, 133 Or App at 523 (footnote omitted).3
That analysis was wrong. Nothing in Fazzolari suggests that its bifurcation of “special status or relationship” and “reasonable foreseeability” was meant to apply in the face of a general rule of nonliability. Recognition of the rule of nonliability necessarily limits a plaintiffs ability to recover to those circumstances falling within explicit exceptions to that rule — and no others. When the occasion next arises, we should revisit and repudiate Faverty’s analysis.
See 159 Or App at 221 n 20.
Section 317 provides:
“A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
“(a) the servant
“(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
“(ii) is using the chattel of the master, and
“(b) the master
“(i) knows or has reason to know that he has the ability to control his servant; and
(ii) knows or should know of the necessity and opportunity for exercising such control.”
In Faverty, I joined in the dissent and continue to view Judge Edmonds’ analysis as correct.