dissenting.
I have strong reservations about the extremely narrow and restrictive interpretation of ORS 163.545 that is advanced by the majority. Their opinion misconstrues the purpose and meaning of the statute when it states:
“A careful reading of the language in ORS 163.545(1) and the standard of care in ORS 161.085(10) leads us to conclude that the legislature intended to require the state to produce evidence of a recognized or unrecognized dangerous condition in defendant’s home from which a substantial and unjustifiable risk could be inferred. * * *” 66 Or App at 698. (Emphasis supplied.)
Certainly, one of the purposes of the statute was to protect children from dangerous physical conditions or defects which exist in the place the children are left unattended, but the statute does much more than' look to a parent’s compliance with the building code for an indication that children are not being neglected. A child does not have to be injured because of faulty wiring or dry rot to come under the protections of this statute. ORS 163.545 is, above all, designed to protect children from the dangers which are inherent in being very young. Children lack the experience and judgment which are necessary to gauge the risks involved in many of life’s situations and activities. By their very nature they can be a risk to themselves, especially when left alone. ORS 163.545 in effect requires parents to exercise judgment on behalf of their children and imposes liability in certain cases where they have failed to do so. A reading of the legislative history of this statute, as set forth in the commentary to the proposed criminal code, makes this very clear.
“The term ‘unattended’ means that the child is left under circumstances in which no responsible person is present to attend to his needs. Leaving a three month old child in the *702care of a nine year old child might, in some cases, amount to child neglect. An alleged offense under this section must be viewed as a totality of circumstances; the age of the child, place where left, whether it was left alone or in the company of others, period of time left and, finally, whether the sum of these circumstances are such as would endanger the health or welfare of the child.” Proposed Oregon Criminal Code § 174 (1970).
The interpretation suggested by the majority would severely restrict the applicability of ORS 163.545, which would, in turn, critically hamper efforts to deal with the very real problem of child neglect.
The majority does agree, although somewhat equivocally, that the trial court properly admitted the evidence of defendant’s presence at the tavern and the children’s deaths in the fire. Thus, under the totality of the circumstances, as addressed by the statute, the negligence picture was completed. In the face of all this evidence, I am at a loss to understand how the majority is able to conclude that the trial court erred in not granting defendant’s motion for judgment of acquittal.
I would affirm.