dissenting.
The majority has, for the first time, created a strict liability tort against public bodies and their police employees because “[t]he duty defendants are alleged to have neglected * * * is not an ordinary common law duty of due care to avoid predictable harm to another. It is a specific duty imposed by *718statute for the benefit of individuals previously identified by a judicial order.” 295 Or at 707.1 dissent, for these reasons:
1. The holding of the majority opinion is inconsistent with a number of recent decisions of this court, which it overrules without a passing glance.
2. Public bodies and their employees are responsible for the performance of many duties for the benefit of the public. Their ability to perform those duties may depend upon a number of factors including availability of resources and demands of other mandated duties. Normally, tort liability requires a showing that the putative tortfeasor is guilty of socially unreasonable conduct. We should tread warily before holding public bodies and their employees liable without fault for damages arising from the failure to perform the duty imposed by ORS 133.310(3).
3. No party in this case has ever contended that public bodies or their employees should be liable, without fault, for failure to perform the statutory duty imposed by ORS 133.310(3). The majority’s utterance is the first time that any strict liability doctrine has been discussed or considered in this case. The plaintiffs’ theory of recovery has always been negligence. On its own, the majority has converted the case to one of strict liability without allowing any party the opportunity to argue or discuss the proposition, pro or con.
I
The contention that violation of a duty imposed by statute gives rise to a private right of action not known to the common law has been considered and rejected by this court several times in the last five years. Bob Godfrey Pontiac v. Roloff, 291 Or 318, 630 P2d 840 (1981) is the most recent case. It involved a claim for damages against two attorneys for intentionally filing a false counterclaim against the plaintiff in an earlier case. The plaintiffs theory was that the defendants were liable because they violated ORS 9.460(4), which states:
“An attorney shall:
<<$ * * * *
“(4) Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seek to mislead the court or jury by any artifice or false statement of law or fact; * * *.”
*719The trial court sustained defendants’ demurrer to the plaintiffs second amended complaint and granted summary judgment in defendants’ favor after plaintiff filed a third amended complaint. On plaintiff’s appeal, the Court of Appeals affirmed.
Justice Tongue, writing for the court, carefully traced our precedents concerning whether violation of a statutory duty gives rise to a new and private cause of action for damages. I quote his analysis:
“[I]t is helpful to review previous decisions by this court in deciding, in different contexts, whether violation of a duty imposed by statute will give rise to a private cause of action.
“In this court’s most recent discussion of this question, Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980), it was noted (at 276-78) that an initial distinction must be made between (1) cases in which liability would be based upon violation of a statutory duty when there is also an underlying common law cause of action, and (2) cases in which liability would be based upon violation of a statute when there is no underlying common law cause of action.
“A common example of a case of the first type is an action for damages for negligence in which it is contended that violation of a duty imposed by statute is negligence per se in that the statutory duty is the standard of conduct of a reasonably prudent person, although the other elements of a cause of action for negligence must still be shown. The test for determining whether violation of a statute constitutes negligence per se in such a case, as stated in Stachniewicz v. Mar-Cam, Corporation, 259 Or 583, 586, 488 P2d 436 (1971), is (1) whether the injured person is a member of the class intended by the legislature to be protected, and (2) whether the harm is of the kind which the statute was intended to prevent. See also Miller, supra, at 276.
“In Miller, however, it is stated that the approach to be taken by this court is somewhat different in cases in which there is no underlying common law cause of action and when the court is called upon to, in effect, ‘create’ or ‘recognize’ a new tort. 288 Or at 278. In such a case it must still be determined whether the plaintiff is a member of the class protected by the statute and whether the harm inflicted is the type intended to be protected against. The court must undertake further analysis, however, by an examination of the statute to *720determine whether there exists any explicit or implicit legislative intent that a violation of a statute should give rise to a tort cause of action. Miller, supra, at 278.
“If no intent either way is evident from the statute, then, according to Miller, at 278, this court must attempt to ascertain how the legislature would have dealt with the problem had it been considered by the legislature. This is usually done, according to Miller, at 278, by ‘looking at the policy giving birth to the statute and determining whether a civil tort action is needed to carry out that policy. ’ (Emphasis added.) In Miller, upon application of these criteria under quite different facts, this court declined (at 279) to ‘create’ a new and private cause of action for damages for violation of a statute.[5]
“In Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978), this court also declined to ‘create’ or ‘recognize’ a new private cause of action for violation of a statute, again under quite different facts. In that case we described (at 712) the question to be decided as being whether such a new tort action was ‘necessary and desirable to further vindicate the right [of the aggrieved party] or to further enforce the duty created by the statute.’ In employing the above analysis, this court in Burnette emphasized that in such a case it is the court, and not the legislature, which is ‘creating’ or ‘recognizing’ the new cause of action, stating (at 711-12) that:
“ ‘The establishment by courts of a civil cause of action based on a criminal or regulatory statute is not premised upon legislative intent to create such an action. It is obvious that had the legislature intended a civil action it would have provided for one, as legislatures many times do. Therefore, the underlying assumption is that it was not intended that the statute create any civil obligation or afford civil protection against the injuries which it was designed to prevent. When neither the statute nor the common law authorizes an action and the statute does not expressly deny it, the court should recognize that it is being asked to bring into existence a new type of tort liability on the basis of its own appraisal of the policy considerations involved. * * *
“ ‘Because it is plain to the legislature that it could have created the civil liability and it has not, courts must look carefully not only at the particular statute establishing thé right or duty but at all statutes which might bear either directly or indirectly on the legislative purpose. If there is any chance that invasion into the field by the court’s establishment of a civil cause of action might interfere with the *721total legislative scheme, courts should err on the side of non-intrusion because it is always possible for the legislature to establish such a civil cause of action if it desires. ’ (Emphasis added)
“Again, in Farris v. United States Fidelity and Guaranty Company, 284 Or 453, 587 P2d 1015 (1978), this court held that violation of provisions of the Insurance Code prohibiting certain conduct did not give rise to a tort action. The primary reason for so holding was that other provisions of the code provided for civil penalties payable to the state for code violations and that this was an indication that the legislature did not intend a private cause of action. 284 Or at 458.
“In Brown v. Transcon Lines, 284 Or 597, 588 P2d 1087 (1978), however, this court stated (at 604) that ORS 659.410, making it an unlawful employment practice to discriminate against a worker for applying for workers’ compensation benefits, recognized a public policy that supported a civil action for damages for wrongful discharge by a worker discharged for applying for such benefits. The court made it clear, however (at 604 and 610-12), that it was not ‘creating’ or ‘recognizing’ a new cause of action in that case based upon violation of ORS 659.410, but was holding only that such an employee had an existing common law cause of action for wrongful discharge. Brown, therefore, is best characterized as an extension of an existing common law cause of action, rather than creation of a new cause of action. (See distinction by this court in Miller, supra, at 276-78, as previously noted.)
“In another recent case this court also used a violation of a statutory duty as the basis for finding liability under an existing common law cause of action for negligence, i.e., as negligence per se. See Davis v. Billy’s ConTeena, Inc., 284 Or 351, 587 P2d 75 (1978) (violation of ORS 471.130(1), prohibiting sale of liquor to minors, as negligence per se).
“From this review of decisions by this court it appears that although this court has stated circumstances under which it would ‘create’ or ‘recognize’ a new cause of action for damages for violation of a statute when there is no ‘underlying’ common law cause of action, the court has never done so to this date. Indeed, this court has said, in effect, in Burnette, that in a doubtful case it would not do so, but would leave the mátter to the legislature. 284 Or at 712.
“The issue presented in this case is clearly one in which there is no underlying common law cause of action. In O’Toole this court rejected the contention that alleged violations of ORS 9.460(3) and (7) provided the basis for a common law *722action for damages for negligence. Also, because ORS 9.460 was originally enacted in 1862, we find nothing in the statute or its legislative history to indicate that the legislature intended that there should be liability for violation of its provisions. Thus, in this case, as in Miller and Burnette, this court must decide, ‘on the basis of its own appraisal of the policy considerations involved,’ whether to ‘bring into existence a new type of tort liability’ for damage to reputation and for attorney fees against an attorney who has allegedly violated the provisions of ORS 9.460(4).
“The concurring opinion by Linde, J., is critical of our quotations from Miller and Burnette and our application of the analysis adopted by this court in those cases to the problem presented in this case.
“It may be that in some future case this court will decide to abandon the analysis adopted by it in those cases and to adopt the analysis proposed by Linde, J. In this case, however, neither party has either questioned the analysis adopted by this court in Miller and Burnette or proposed that a different analysis be adopted by this court in this case. Under these circumstances, we believe it to be proper to not only decide this case by application of the analysis adopted by this court in Miller and Burnette, but in doing so to refer specifically to the analysis as adopted in those cases.
“This analysis of the problem presented in this case is similar to the analysis proposed by the Restatement of Torts (Second,) § 874A, for application in deciding when such liability should be imposed as follows:
“ ‘When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.’
“The official comment to the Restatement proposes that the primary test for application in determining whether to impose civil liability should be whether the new civil remedy is ‘consistent with the legislative provision, appropriate for promoting its policy and needed to assure its effectiveness.’ Comment f, § 874A.” 291 Or at 325-330. (Footnotes omitted.)
For a number of reasons, we opted in Bob Godfrey Pontiac not to recognize a new cause of action based upon a *723violation of the statutory duty, 291 Or at 332-337, three main reasons being: (1) that recognition of the new cause of action was not necessary to carry out the policy of the statute, 291 Or at 332; (2) that creation of the new cause of action would be inconsistent with long-established rules and practices, 291 Or at 334; and (3) that courts should go slowly in establishing new civil causes of action based upon a violation of statute because it is always possible for the legislature to establish a civil cause of action if it wishes to do so, 291 Or at 337.
Justice Linde concurred with the result but disagreed with the analysis quoted above.
Three years earlier, over a dissent by Linde, J., this court reached the same result in Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978). There, in three identical cases, five minor children between the ages of two to eight brought actions against their mothers for emotional and psychological injury caused by failure of the defendant-mothers to perform their parental duties to the plaintiffs. The complaints alleged that the children were deserted and abandoned “maliciously, intentionally, and with cruel disregard of the consequences.” 284 Or at 723.
The plaintiffs’ principal reliance was upon a showing of a violation of statutes requiring parents to provide nurturing, support and physical care. Relative to the wisdom of creating a new civil cause of action, the opinion states:
“The establishment by courts of a civil cause of action based on a criminal or regulatory statute is not premised upon legislative intent to create such an action. It is obvious that had the legislature intended a civil action it would have provided for one, as legislatures many times do. Therefore, the underlying assumption is that it was not intended that the statute create any civil obligation or afford civil protection against the injuries which it was designed to prevent. When neither the statute nor the common law authorizes an action and the statute does not expressly deny it, the court should recognize that it is being asked to bring into existence a new type of tort liability on the basis of its own appraisal of the policy considerations involved. If a court decides to create a cause of action for the act or omission which violates the statute, the interest which is invaded derives its protection solely from the court, although the legislative action in branding the act or omission as culpable is taken into consideration by the *724court in deciding whether a common law action should be established. If a civil cause of action based upon a statute is established by a court, it is because the court, not the legislature, believes it is necessary and desirable to further vindicate the right or to further enforce the duty created by statute.
“Because it is plain to the legislature that it could have created the civil liability and it has not, courts must look carefully not only at the particular statute establishing the right or duty hut at all statutes which might bear either directly or indirectly on the legislative purpose. If there is any chance that invasion into the field by the court’s establishment of a civil cause of action might interfere with the total legislative scheme, courts should err on the side of non-intrusion because it is always possible for the legislature to establish such a civil cause of action if it desires. Courts have no omnipotence in the field of planning, particularly social planning of the kind involved here. Courts should exercise restraint in fields in which the legislature has attempted fairly comprehensive social regulations.
“There is no doubt but that the statutory provisions previously cited show a strong state policy of requiring the kind of parental nurturing, support and physical care of children which the defendants here are alleged to have denied their children. As previously indicated, it does not follow as a matter of course that it would be wise or judicious to vindicate that policy by a tort action for damages by children against their mothers.” (Footnotes omitted.) 284 Or 711-712.
We rejected the plaintiffs’ claims saying that “* * * there is a limitation to the extent to which use may be made of tort actions for the purpose of accomplishing social aims.” 284 Or at 715.
If stare decisis has any residual life, we should follow these cases and reject the creation of a new, strict liability tort based upon a violation of ORS 133.310(3).
II
Further reasons support my conclusion. The legislative history indicates, in clear terms, why this statute was needed. Police were chary about arresting battering spouses if the police had not witnessed the assault. Battered women were suffering as a result of police inaction. There is no question as to the need for the law or the goal of the law. But there is no suggestion in the legislative history — not a whisper — that it *725was contemplated that a civil cause of action would be created against police and their employers if they failed to arrest.
Of course, as the opinions cited above make clear, this court still has the power to create a new type of tort liability “on the basis of its own appraisal of the policy considerations involved.” Burnette v. Wahl, supra, 284 Or at 711. I do not believe that we should do so today — in this case — for these reasons.
First, the rule of strict liability created in the majority opinion is at variance with the salutary principle that the basis for tort liability normally is unreasonable conduct by the tortfeasor. The common thread in almost all torts is the idea of unreasonable interference with the interests of others. W. Prosser, Torts 6 (4th ed 1971). Although this court has, in the face of manifest need, created strict liability torts, see Wights v. Staff Jennings, Inc., 241 Or 301, 405 P2d 624 (1965), we have rejected new civil torts for violation of statutes under facts similar to those at bar.
Second, this case involves public liability — the liability of the state, its cities and counties, and of peace officers employed by them. We declined to create a right of action against private persons in Burnette v. Wahl, Miller v. City of Portland, and Bob Godfrey Pontiac v. Roloff, all supra. I would tread even more gingerly in creating a new tort against public bodies and their employees. Public monies are scarce, and public responsibilities are multiplying. I do not favor compounding already hefty public problems by creating this new strict liability tort.1 In addition, the overwhelming weight of authority holds that a breach of duty by a police officer creates no liability on the part of the officer to an individual who is damaged by a lawbreaker’s conduct. See Annot., 41 ALR 3d 700-711 (1972). See also Note, 94 Harv L Rev 820 (1980-81). This is an extremely important question, not heretofore presented in either the trial court or the Court of Appeals, and we should not decide a question not presented.
This court is poorly equipped to make the kind of policy judgments the majority makes. We have no way of knowing *726how today’s decision will affect the ability of municipalities and counties to enforce the law and recruit and hire competent law enforcement officers. We have no way of knowing how much today’s decision will exacerbate the fiscal problems of Oregon’s cities. Given the prevalence of domestic strife, the effect upon a local government budget could be considerable. Furthermore, we have no way of knowing how today’s decision might affect day-to-day law enforcement practices. Although the complaint alleges serious matters for which immediate police action was appropriate, other serious matters of consequence exist. The imposition of personal liability upon officers and upon their employers for failure to arrest could result in an inefficient use of scarce police resources in a period of social crisis or high crime.
Third, this is a new law. We have no information, one way or the other, whether the creation of a strict liability remedy against public bodies and their peace officers is necessary to vindicate the statutory policy. If peace officers are not doing their duty, I favor giving the legislature a further opportunity to look into whether the creation of such a cause of action is necessary. To this day, the public bodies and their employees have not yet been heard from, either by the legislature or any court.2
Ill
A further reason exists for rejecting the majority’s analysis. This case was not brought, tried, considered or appealed as a strict liability tort case. The plaintiffs repeatedly have characterized their claims as based upon negligence.3 Uninvited, this court has created a new tort, a tort having far-reaching consequences to cities, counties, the state, and their peace officer employees. We need not and should not reach *727this question without briefing or argument from any of the parties.4
This is a very significant question. The rule stated in the majority opinion will apply in every area of public activity, with potential strict liability arising from public failure to perform acts dictated by statute in every area of governmental endeavor. We should not reach the question in this case, unbriefed, unconsidered, and unenlightened.
IV
I see this case as a negligence case, as did the plaintiffs’ attorneys, the defendants’ attorneys and the trial court. Considering it as a negligence case, I would affirm the trial court. The basis for the trial court’s summary decision is clear. The record contains a letter from the trial judge to the parties which reads, in part, as follows:
“After the argument of defendants motion for summary judgment, the Court took the matter under advisement for study of the memoranda and assorted materials supplied by counsel. That has been accomplished and the Court will now rule.
“I am convinced that this is not the type of case in which Oregon Law favors or even suports [sic] an award of damages for emotional distress or mental anxiety. Since that is the basis for the damage claim of the plaintiffs, there is no issue as to any material fact and the motion therefore is well taken.”
The trial court was right. This court generally has rejected negligence claims for mental distress unaccompanied by physical injury or physical consequences. The rule is stated in Melton v. Allen, 282 Or 731, 736, 580 P2d 1019 (1978):
“It is true that this court has departed from the rigid rule of no redress for damages for mental disturbance without accompanying physical injury or physical consequences, as stated in Adams v. Brosius, 69 Or 513, 139 P 729 (1914), and Rostad v. Portland Ry. Etc. Co., 101 Or 569, 581, 201 P 184 (1921). But in each instance in which we have allowed redress for mental disturbance without accompanying physical injury, it has been a case involving intentional acts of a flagrant character *728under most unusual facts and circumstances which added to the weight of the plaintiffs claim, and each was clearly a serious invasion of the plaintiffs right and not feigned. See Prosser, Law of Torts 56-59, § 12 (4th ed 1971). The cases in which we have so departed have been those of outrageous conduct, invasion of the right of privacy, or some special circumstances of considerable magnitude.” (Footnote omitted)
The mental distress sustained by the plaintiffs directly was caused by the husband and father. The participation of the peace officers alleged in the complaint is not the type of conduct which has supported the award of mental distress damages unaccompanied by physical injury. I would adhere to Melton v. Allen and affirm.
Campbell, J., joins in this dissent.According to recent newspaper reports, because of lack of funds one of Oregon’s most populous counties, Lane County, is providing no sheriff patrol services in the county. Under the majority opinion a plaintiff would make out a prima facie case merely by showing a violation of ORS 133.310(3).
The legislative history shows no opposition to the measure by cities and counties. Had they had a glimmer of notice that a civil remedy was in contemplation, I am convinced that there would have been opposition to the bill.
The plaintiffs’ brief states:
“The questions presented on appeal are:
“1. As a matter of law, are plaintiffs entitled to recover for emotional harm caused as a result of defendants’ negligence?”
Elsewhere in their brief the plaintiffs refer to these actions as “negligence actions” and they assert that the defendants “negligently performed this [statutory] duty.”
In a recent tax case having considerable significance to Oregon counties, on our own motion we invited the Association of Oregon Counties and the ACLU to file amicus briefs. Grant County v. Guyer, argued August 2, 1983, Supreme Court No. 29562.