concurring.
I join in the opinion of the court. However, with respect to that portion of the opinion that deals with the OOSHC and OSHA safety rules, I have the following additional observations:
The holding in Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985), may be easy to identify, bút its rationale is somewhat less clear. The holding is correctly summarized in the lead opinion (317 Or at 385). I set out pertinent portions of Shahtout here for convenience:
“Governmental safety regulations * * * are law. * * * Because they are laws, the question is not whether they are evidence of a fact but rather what bearing they have on the governing standard of conduct.
“Whether one of [a governmental agency’s] safety rules bears on the issue of due care toward a nonemployee depends on the nature of the requirement, the place and circumstances in which it applies, and the type of risk it is meant to prevent. * * *
“In order to decide whether a safety rule should be considered by a factfinder, therefore, a trial court must first determine its purpose and the nature and circumstances of the risk to which the rule is addressed, particularly whether the department contemplated a risk peculiar in nature or gravity to an employee’s position in the workplace * * *.
“* * * The role of the rule is not to show what in fact happened nor what experts or others engaged in activities like those that caused the injury consider the proper means to avoid it. If the safety rule is one that may be considered at all under the foregoing test, the jury (or judge) may take this governmentally prescribed safeguard into account in deciding the issue of due care. Plaintiff may argue that the government has adopted the rule as an obligatory safeguard for employees in the kind of situations and against the kind of *394risk that led to plaintiffs injury. Defendant, of course, may argue that the safeguard for employees exceeds the ordinary standard of due care considering the nature of the risk and the foreseeability of injury.”
298 Or at 604-06.
The rationale for the foregoing needs exploration, because this particular case is not governed by the language of the safety rule. In Shahtout, the rule applied to the defendant, but the plaintiff was not a person within the scope of the rule’s protection. In this case, plaintiff is a person within the scope of the rule’s protection, but the rule does not apply to the defendant. The lead opinion recognizes this distinction in a way, but does little to make the connection between the Shahtout rationale and the outcome of this case beyond announcing the latter with a citation to the former.1 The foregoing notwithstanding, I believe that the rationale of Shahtout, when properly understood, does support the result that the lead opinion announces here.
The Shahtout rationale is that, because they are laws, safety regulations are like statutes passed by a politically accountable legislative body. Such a legislative body has the power to determine public policy, including the power to declare what standards it deems pertinent to protecting portions of the public from various kinds of harm.
Safety standards set by a legislative body (or by a governmental agency pursuant to authorization from such a body) may be limited in scope, either because (in the case of the legislature) the particular concern that led to the promulgation of the standards was itself limited or because (in the case of the agency) the scope of the agency’s authority was limited. Indeed, Shahtout is an illustration of the latter case — the rule in question by its terms extended only to workers, because the authority of the promulgating agency extended *395only to protecting workers. But such safety standards nonetheless are announcements of public policy that are sufficiently akin to industry standards to permit their use by triers of fact in determining whether a party has met a pertinent standard of care. That is all that plaintiff is asking be done here.
I would hold that legislative or administrative safety standards that are applicable either to a plaintiff or to a defendant may be considered by a jury in determining whether a party has met the appropriate standard of care, subject to any party’s right to show, inter alia, that the standards exceed (or fall short of) the appropriate rule} that the standards were not known (and, in the exercise of reasonable care, could not have been known) to the party against whom they are offered, that the party against whom they are offered reasonably expected some other party to comply with the standards, and the like.
With that additional explanation, I join in the court’s holding that plaintiff was entitled to have the trier of fact informed as to the provisions of the OOSHC and OSHA rules.
The lead opinion also appears to rely on a passage from this court’s later decision in Bellikka v. Green, 306 Or 630, 650-51, 762 P2d 997 (1988). Aside from being difficult to read, however, that passage is dictum. It was unnecessary to any discussion of the case, and the principal reason that I declined to join in that portion of the Bellikka opinion. See Bellikka v. Green, supra, 306 Or at 654 (Gillette, J., concurring in part and specially concurring in part).