specially concurring.
Although I agree with the result reached by the majority, I believe that it perpetuates the confusion that exists in the cases by failing to distinguish between the existence of legal duty to plaintiff and whether defendant breached that duty.1 Accordingly, I write separately.
Much of what I have said in my dissent in Fazzolari v. School District No. 1J, 78 Or App 608, 717 P2d 1210 (1986) (decided this date), is applicable here. However, in this case I *644would hold, as a matter of public policy, that one who sells guns and ammunition has a legal duty to the public to secure the premises properly when the store is closed for business. Most of the majority opinion is devoted to a discussion of whether plaintiff, at trial, may be able to prove that defendant was negligent, that is, breached its assumed duty to plaintiff. That is not the question, although I must concede that some of the cases seem to indicate that it is part of the inquiry. See Mezyk v. National Repossessions, 241 Or 333, 405 P2d 840 (1965).
In Mezyk, the court held that, if an owner of a car is negligent by creating a risk of harm by leaving his keys in his unlocked car, he owes a duty to third persons injured by a negligent thief. Because the trial court had sustained a demurrer to the complaint, the Supreme Court reversed, stating that the question of duty must be determined by the allegations of the complaint and any facts that might be adduced as proof of negligence.
It seems to me that the Mezyk analysis puts the cart before the horse or, perhaps, has the horse riding in the cart. Although the court recognized that “duty” is an expression of policy considerations that “lead the law to say that the particular plaintiff is entitled to protection,” 241 Or at 336, it did not resolve that question by reference to the complaint alone, which alleged that the defendant was negligent in leaving the keys in his unlocked parked car. If duty is a judicial policy decision, it would seem that a plaintiff must allege sufficient facts to permit the court to decide whether, accepting the allegations as true, the defendant owed the plaintiff a duty. Of course, the complaint must also allege the other elements of a claim for relief; however, those elements are not issues that concern us here. If the defendant challenges the complaint by a motion to dismiss, as here, we should determine from the face of the complaint whether the defendant had a legal duty to use reasonable care to avoid injuring the plaintiff. That is the initial question, and it is for the court to decide.
The complaint contains allegations, albeit somewhat conclusory and not necessarily in the proper sequence, that permit the resolution of defendant’s legal duty. 78 Or App at 638. The material ones are: defendant operated a retail store *645in which it sold shotguns and ammunition, which were displayed openly; shotguns are dangerous instrumentalities, and, when the store was closed, defendant failed to take reasonable security measures commensurate with the danger involved, in that it failed to secure the external doors with “proper locks and alarms.”2 The question is whether, assuming those facts to be true, defendant owed a legal duty to plaintiff to prevent her injury, as alleged, and is not, as the majority says, whether plaintiff may adduce other facts at trial that might establish defendant’s duty.
On its merits, this case is similar to Mezyk v. National Repossessions, supra, in which the court analogized a car owner’s duty to third persons injured by the negligence of the driver of his car — negligent entrustment — to the owner’s similar duty when he creates an unreasonable risk of harm by negligently leaving his keys in the car resulting in injury to third persons by a negligent thief. The legal duty was imposed there, because the defendant, by leaving his keys in his car, created a likelihood of harm to third persons. Here, defendant is alleged to have created an unreasonable likelihood of harm to third persons by failing to secure properly its store containing shotguns and ammunition, it being reasonably foreseeable that someone would enter the improperly secured and unattended store, steal a gun and ammunition and injure someone.
I will not repeat the other factors discussed in my dissent in Fazzolari; in my opinion, they all weigh in favor of concluding that defendant owed a legal duty to third persons, including plaintiff. The complaint as a whole alleges enough to get by a motion to dismiss. After the facts are in, it may be that they will not support the allegations necessary to impose a legal duty on defendant.
As Justice O’Connell said in his concurring opinion in Dewey v. A. F. Klaveness & Co., 233 Or 515, 524, 379 P2d 560 (1963): “It is not always made clear * * * whether the court is addressing itself to the problem of duty or to the question of sufficiency of evidence to prove a breach of duty.”
If plaintiff had not alleged that defendant failed properly to secure the exterior doors, I would hold that plaintiff has not alleged sufficient facts to impose a legal duty on defendant.