specially concurring.
Although I agree that the complaint does not allege sufficient facts to state a claim, I do not agree that the allegations are sufficient to permit the court to say, as a matter of law, that defendants had a duty to plaintiff to prevent the harm claimed. If a duty is alleged, as the majority says, then I think the question whether there was a breach of that duty is for the jury, in which case the trial court erred in granting defendants’ motion to dismiss.
In the abstract, every person owes a duty to exercise due care. The majority does not, apparently, rely on that abstraction. It says:
“Defendants, as possessors of land held open to the public and due to their special relationship with the students who attend their schools, had a duty to take precautions to protect plaintiff from reasonably foreseeable acts of third parties. Fazzolari v. Portland School District No. 1J, 78 Or App 608, 611, 717 P2d 1210, rev allowed 301 Or 338 (1986).” 83 Or App at 295. (Emphasis supplied.)
*297As I said in my dissent in Fazzolari,11 agree that defendants had a duty to protect plaintiff from foreseeable risks. Yet the majority, after making the quoted statement, does not treat foreseeability of harm as a consideration in deciding whether defendants owed a duty to plaintiff. 83 Or App at 295. Rather, it treats foreseeability as relevant only to the question of whether there was a breach of duty. As I have indicated, I think that that is wrong, although foreseeability is also relevant to that question. Whether there is a duty is a question for the court; whether there is a breach of that duty is for the jury. We should not confuse further an already complicated and confusing area of the law.
Because I conclude that plaintiff has not alleged sufficient ultimate facts to permit the court to hold that defendants had a duty to him in the circumstances alleged, I concur that the trial court should be affirmed.
Without repeating all that I said in my Fazzolari dissent, I do not agree with the majority that the fact that one of the defendants was a possessor of land held open to the public affects either defendant’s duty; that rule is not applicable to school districts, which are non-commercial enterprises.