58	                     July 21, 2016	              No. 50

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                      Patricia PIAZZA,
       acting on behalf of Farley Piazza and Associates
            and as Personal Representative of the
      Estate of Martha Paz De Noboa Delgado, deceased,
                    Respondent on Review,
                               v.
                       Bryan KELLIM,
                    dba 99 Pawn & Guns,
                          Defendant,
                              and
                     FIVE STARS, INC.,
                        dba The Zone;
                Concept Real Estate, LLC; and
             Concept Entertainment Group, Ltd.,
                   Defendants-Respondents,
                              and
                 ROTARY INTERNATIONAL
           and Rotary International District 5100,
                    Petitioners on Review.
                      S063442 (Control)
                      Patricia PIAZZA,
       acting on behalf of Farley Piazza and Associates
            and as Personal Representative of the
      Estate of Martha Paz De Noboa Delgado, deceased,
                    Respondent on Review,
                               v.
                      Bryan KELLIM,
                    dba 99 Pawn & Guns,
                          Defendant,
                              and
                     FIVE STARS, INC.,
                        dba The Zone;
                  Concept Real Estate, LLC;
           and Concept Entertainment Group, Ltd.,
                    Petitioners on Review,
Cite as 360 Or 58 (2016)	59

                             and
                ROTARY INTERNATIONAL
            and Rotary International District 5100,
                  Defendants-Respondents.
                          S063451
                (CC 1201-00270; CA A153286;
              SC S063442 (Control), SC S063451)



   En Banc
   On review from the Court of Appeals.*
  Argued and submitted March 7, 2016, at Lewis & Clark
Law School, Portland, Oregon.
   Jonathan Henderson, Davis Rothwell Earle & Xóchihua,
P.C., Portland, argued the cause and filed the brief for
petitioners on review Rotary International and Rotary
International District 5100. With him on the brief were
William Davis and Christopher M. Parker.
   James L. Hiller, Hitt Hiller Monfils Williams LLP,
Portland, argued the cause and filed the brief for petition-
ers on review Five Stars, Inc., dba The Zone; Concept Real
Estate, LLC, and Concept Entertainment Group, Ltd.
   J. Randolph Pickett, Pickett Dummigan LLP, Portland,
argued the cause and filed the brief for respondent on review.
With him on the brief were R. Brendan Dummigan, Kristen
West McCall, Kimberly O. Weingart, Ron K. Cheng, and
Benjamin B. Grandy, Law Office of Benjamin B. Grandy,
P.C., Beaverton.
   Kathryn H. Clarke, Portland, filed the brief for amicus
curiae Oregon Trial Lawyers Association.
   BREWER, J.
______________
	 *  Appeal from Multnomah County Circuit Court, Edward J. Jones, Judge.
271 Or App 490, 354 P3d 698 (2015).
60	                                                         Piazza v. Kellim

   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
  Balmer, C. J., dissented and filed an opinion, in which
Landau, J., joined.
     Case Summary: Personal representative of deceased foreign exchange stu-
dent’s estate brought negligence action against owners and operators of underage
nightclub and the organizations that operated the foreign exchange program.
Defendants moved to dismiss plaintiff’s complaint under ORCP 21 A(8) on the
ground that plaintiff had failed to state facts sufficient to constitute a claim for
relief with respect to the issue whether the decedent’s death was a foreseeable
result of defendants’ conduct. The trial court granted defendants’ motions. The
Court of Appeals reversed, holding that plaintiff’s complaint sufficiently alleged
facts which, if proved, would permit a trier of fact to find that it was reasonably
foreseeable to the club defendants that people standing outside the club late at
night were at risk of harm from violent assault and that decedent’s death was
within that general class of harm. Likewise, the Court of Appeals held, the com-
plaint’s allegations, if proved, would permit a reasonable juror to find that the
foreign exchange program defendants’ conduct exposed decedent to a foreseeable
risk of violent assault and that the type of harm that befell the decedent was
within that general class. Held: (1) Plaintiff’s allegations detailing a history of
violent assaults—including gun violence—at and in the neighboring vicinity of
the club, combined with allegations of a known risk of such violence in the future,
would permit a reasonable trier of fact to determine that a reasonable person in
the position of the club defendants would have foreseen a risk of violent assault
on the public sidewalk outside the club, where underage patrons were queued up
to enter, and would also permit a reasonable trier of fact to find that the harm
that befell decedent was within the class of harms at risk; and (2) plaintiff’s
allegations that the prior violent assaults in and around the club were publicized
in the media and that the foreign exchange program defendants knew or should
have known of the dangers of leaving the decedent at the club under the described
circumstances would permit a reasonable trier of fact to find that a reasonable
person in the position of the foreign exchange program defendants would have
foreseen the risk of violent assault on the public sidewalk where they left dece-
dent, and would also permit a reasonable trier of fact to find that the harm that
befell decedent fell within the class of harms of which those defendants were
alleged to have been aware.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit
court dismissing this action is reversed, and the case is remanded to the circuit
court for further proceedings.
Cite as 360 Or 58 (2016)	61

	          BREWER, J.
	       In this negligence action, plaintiff, the personal
representative of the estate of Martha Delgado, alleged in
her complaint1 that Delgado—a foreign exchange student
staying in this country under the supervision of defendants
Rotary International and Rotary International District
5100 (the Rotary defendants)—was shot and killed by an
assailant while standing in line on a public sidewalk outside
the Zone, a teenage nightclub in Portland owned by several
business entities (the Zone defendants).2
	         On defendants’ motion, the trial court dismissed
plaintiff’s complaint on the ground that plaintiff had failed
to state facts sufficient to constitute a claim for relief with
respect to the issue whether Delgado’s death was a foresee-
able result of defendants’ conduct. See ORCP 21 A(8) (pro-
viding for dismissal for “failure to state ultimate facts suf-
ficient to constitute a claim”). A divided panel of the Court
of Appeals reversed the ensuing judgment dismissing this
action. Piazza v. Kellim, 271 Or App 490, 354 P3d 698 (2015).
On review, we conclude that plaintiff alleged facts that—if
proved—were sufficient to permit a reasonable juror to find
that Delgado’s death was a reasonably foreseeable result of
defendants’ conduct. Accordingly, we affirm the decision of
the Court of Appeals, and we reverse the judgment dismiss-
ing this action and remand to the trial court.
          I.  FACTS AND PROCEDURAL HISTORY
A.  The Complaint
	       Because this is an appeal from a trial court judg-
ment dismissing a complaint under ORCP 21 A(8), we
assume that all well-pleaded facts are true and give plaintiff
the benefit of all favorable inferences that reasonably may
be drawn from those factual allegations. See, e.g., Caba v.
Barker, 341 Or 534, 536, 145 P3d 174 (2006) (stating stan-
dard of review). Plaintiff alleged that Delgado, age 17, was
staying with a host family in White Salmon, Washington, as
	1
       Plaintiff’s operative pleading was a second amended complaint; for ease of
reference, we refer to that pleading as the complaint.
	2
       The Zone defendants are Five Stars, Inc., Concept Real Estate, LLC, and
Concept Entertainment Group, Ltd.
62	                                           Piazza v. Kellim

part of an international exchange program sponsored and
managed by the Rotary defendants. On January 24, 2009,
a group of approximately 14 Rotary exchange students,
including Delgado, gathered at the home of the host parents
of one of the students for a birthday celebration. Later in the
evening, the host parents drove the group to the Zone. The
Zone was an underage nightclub that admitted people ages
16 to 21 and featured dancing. The Zone was located in the
“Old Town/Chinatown neighborhood” bordering downtown
Portland; it also was part of what is referred to by police
as the “downtown entertainment district,” which consists of
several streets where nightclubs and bars are located. The
Zone frequently had a “cordoned-off line of customers on the
sidewalk outside the club waiting to get in.” The host par-
ents dropped the students off near the Zone without a chap-
erone and planned to pick them up at 1:00 a.m.
	        Delgado and the other exchange students were
waiting on the sidewalk to get into the Zone when an assail-
ant, Ayala, shot Delgado twice. Delgado died as a result
of her injuries. Ayala, who previously had been diagnosed
with schizophrenia and had exhibited obvious signs of
mental illness and depression to coworkers, “went to the
Zone nightclub looking to shoot ‘preppies’ or ‘pop tweens,’
against who[m] he may have held a grudge.” Before shooting
Delgado, Ayala had stood in front of the Zone and loaded his
pistol.
	        Delgado’s shooting was not the first at that particu-
lar location. In July 2002, a shooter fired into a crowd of peo-
ple standing outside the nightclub, striking three people. At
that time, the club had a different name, but it was owned
and operated by the Zone defendants. There also had been a
“history of fights and assaults in the line outside the night-
club.” In addition, the area surrounding the Zone had expe-
rienced violent crimes before the 2009 shooting. In the years
preceding the 2009 shooting, the downtown entertainment
district was “plagued by recurrent incidents of violence,”
which were “linked by police to gang activity and to clubs
in the district exceeding capacity and serving too much
alcohol.” In 2005, a series of shootings left two people dead
and four injured. “It was known by Portland police and club
owners alike that there was a high probability that more
Cite as 360 Or 58 (2016)	63

shootings would take place in the downtown entertainment
district.” As a consequence, police “blanketed the downtown
entertainment district with police officers to ease fear.” The
effort, which was called “Operation Safe Streets,” included
at least two dozen police officers patrolling on foot and horse-
back on Friday and Saturday nights through early morn-
ing, and gang enforcement officers, traffic safety officers,
parole officers, and liquor control investigators were also on
patrol. Owners of area nightclubs were asked to close early
on weekend nights and were advised to have adequate secu-
rity, cut off all intoxicated customers, and respond swiftly to
problems or notify police.
	        After violence continued in the downtown entertain-
ment district, in August 2006, Portland police called a “bar
summit” with owners and managers of downtown bars and
nightclubs to help them adopt policies to reduce violence. At
the meeting, which included a representative of one of the
Zone defendants, businesses and police addressed, among
other issues, the shootings in the Old Town/Chinatown
neighborhood. At the summit, police and businesses also
addressed whether the violence on downtown sidewalks
and in parking lots was related to intoxicated club-goers (as
police believed) or drug dealers (as clubs contended).3
	        By January 2009, the Old Town/Chinatown neigh-
borhood “had approximately fourteen agencies serving
addicted, mentally ill, and homeless people, more than any
other neighborhood in the city, with thousands of clients
coming to the area every day. Many of those clients bought
drugs.” “Drug dealers, drug users and gang members, all
of whom frequented the area where the Zone nightclub was
located, frequently carried weapons * * *.” “[S]ome club own-
ers, realizing that their clients were in danger of violent
assault, increased security at their bars and nightclubs.” In
2006, a principal of one of the Zone defendants “acknowl-
edged downtown safety problems, but said they were created

	3
      The Zone was located in what used to be one of Portland’s “Drug Free
Zones,” in which anyone convicted of a drug offense could be barred from return-
ing. The drug-free-zone program expired in 2007, and “drug dealers and addicts
took over Portland’s Chinatown/Old Town neighborhood,” which police officers
came to refer to as “crack alley.” “Residents complained of being terrorized by an
increasingly aggressive and confrontational breed of drug users and sellers.”
64	                                              Piazza v. Kellim

by ‘a few bad apples,’ and that police, liquor control, and oth-
ers should “work together for the benefit of club-goers.”
	        Before the shooting, the Zone had undertaken some
measures to provide security for customers inside and out-
side the club. Those measures included:
   “(a)  The Zone had an employee whose primary responsi-
   bility was monitoring customers as they come and go from
   the club. The employee was to assist in line control; to dis-
   tance ‘undesirables,’ i.e. intoxicated persons, harassers,
   transients, known trouble makers, or gang affiliated per-
   sons from guests; and to monitor the parking lot and deter
   potential guests from loitering in or around their cars;
   “(b)  The Zone nightclub had a security camera that mon-
   itored the outside of their establishment;
   “(c)  The Zone nightclub had a security guard or door-
   person at the door outside of the premises who frisked
   everyone before entry, checking for drugs, alcohol, fire-
   arms, or other weapons;
   “(d)  In the past, the Zone had hired off-duty police officers
   to provide security for their customers; [and]
   “(e)  On or about 2006, [t]he Zone nightclub remodeled its
   facilities in the hopes of attracting a better clientele and
   reducing problems at the club including violence.”
Thus, plaintiff alleged, the Zone defendants “knew about
the risk of violence that its customers faced.”
	        Plaintiff further alleged that underage nightclubs
generally are understood to pose “inherent” risks of violence
because of the high proportion of young male patrons, high
noise levels, crowding, competitive environment, and under-
age drinking. “A metropolitan nightclub may see as many as
three or four assaults on staff each night and are often con-
fronted with armed patrons. Shootings, stabbings, felonious
assaults, drug violations, and/or murders are commonplace
in metropolitan nightclubs across the country.” In fact,
several cities around the country “have banned or heavily
regulated teen dance clubs.” According to plaintiff’s alle-
gations, the instances of violence that “occurred nationally
at underage nightclubs and locally in the area around the
Zone nightclub were all publicized in local and/or national
Cite as 360 Or 58 (2016)	65

media, and [the Rotary defendants] knew, or in the exercise
of reasonable care, should have known, about the dangers of
leaving [Delgado] at the Zone nightclub on the date and at
the time in question.”
	        Plaintiff alleged that the Zone defendants owed a
duty to Delgado, who was their business invitee, to exercise
reasonable care to make the premises safe for her, including
protection from criminal acts by third parties. Plaintiff fur-
ther alleged that the Zone defendants breached that duty:
   “(a)  In failing to take reasonable measures to protect
   their customers from the criminal acts of third parties;
   “(b)  In making their customers stand in line in front of
   the club;
   “(c)  In failing to have sufficient security personnel to pro-
   tect their customers;
   “(d)  In failing to properly train their staff to identify
   threats to their customers;
   “(e)  In failing to identify * * * Ayala as a threat while he
   was in front of [t]he Zone;
   “(f)  In failing to have adequate emergency response pro-
   cedures in place to protect customers once a threat was
   identified; [and]
   “(g)  In failing to warn their customers or the parents of
   their customers about the risk of being assaulted while
   patronizing [t]he Zone nightclub.”
	        With regard to the Rotary defendants, plaintiff
alleged that Delgado lived with a host family under the
“auspices, sponsorship, and control” of the Rotary defen-
dants and that the host parents were the Rotary defen-
dants’ agents. Plaintiff alleged that the Rotary defendants
were authorized to exercise “independent supervisory and
parental responsibility to safeguard [Delgado’s] physical
and mental well-being,” and, thus, that a special relation-
ship between Delgado and the Rotary defendants “gave
rise to a heightened duty of care beyond the general duty to
avoid foreseeable risk of harm.” According to plaintiff, the
Rotary defendants, directly or acting through their agents,
breached that duty:
66	                                                        Piazza v. Kellim

    “(a)  In failing to provide host parents with sufficient
    training so as to reasonably ensure the safety of the
    students;
    “(b)  In leaving the students unsupervised, late at night in
    a high crime area;
    “(c)  In failing to adopt and enforce reasonable rules and
    regulations to ensure the safety of the students;
    “(d)  In failing to adopt reasonable rules and regulations
    regarding travel to prevent the students from being left
    alone in dangerous areas; [and]
    “(e)  In failing to properly and adequately warn all the stu-
    dents and their parents of the dangers of being left unsu-
    pervised in a high crime area.”4
B.  The Motions to Dismiss
	        The Zone defendants and Rotary defendants each
moved under ORCP 21 A(8) to dismiss plaintiff’s claims
against them on the ground that plaintiff had failed to allege
a foreseeable risk of harm to Delgado. Defendants argued
that plaintiff’s negligence claims reduced to the following
theory: (1) criminals were more likely to commit crimes
in the area in which the Zone was located; (2) defendants
knew or should have known of that fact; and (3) Delgado
was killed in that “high crime area.” Those allegations,
defendants argued, failed to establish a foreseeable risk of
the particular crime that killed Delgado, which defendants
characterized as a “random spree shooting” against a par-
ticular class of person (“preppies”). According to defendants,
such a shooting was just as likely to occur at a mall, a movie
theater, or an ice cream parlor; thus, “the occurrence of a
random spree shooting in a high crime area does not make it
any more foreseeable than if it occurred in a place one would
normally deem safe, such as a movie theater or a school.”
Indeed, the “randomness” of shootings like the one that
killed Delgado, defendants argued, “means that when and

	4
      The Rotary defendants ask this court to take judicial notice, pursuant
to OEC 201, of certain facts relating to the shooting incident in this case that
are not alleged in plaintiff’s complaint. In light of the procedural posture of our
review of the judgment dismissing this action based on a motion to dismiss under
ORCP 21 A(8), we decline that request, which was made for the first time before
this court.
Cite as 360 Or 58 (2016)	67

where they occur are not foreseeable, as that term is used in
Oregon tort law.”
	         Plaintiff, meanwhile, argued that defendants’ argu-
ments misapprehended what it means for a risk of harm to
be reasonably foreseeable under Oregon case law. In plain-
tiff’s view, “[f]oreseeability in this case does not turn on
being able to foresee ‘random spree shootings,’ but rather on
foreseeing the risk of a violent criminal assault” to Delgado.
“[T]he dangerous character of the nightclub, its location and
its violent history,” plaintiff asserted, “would allow a jury to
conclude that the harm in this case was foreseeable.” She
explained that “[t]here are many foreseeable ways in which
the assault might have taken place[.] * * * Even if an assault
by a mentally ill person is somehow unusual or unexpected,
the resulting harm was legally foreseeable because it was
within the class of reasonably foreseeable hazards” at the
Zone.
	       The trial court ultimately agreed with defendants,
ruling that the shooting that killed Delgado was unfore-
seeable as a matter of law. The court subsequently entered
limited judgments that dismissed all claims against both
the Zone defendants and the Rotary defendants. Plaintiff
appealed those limited judgments and argued before the
Court of Appeals, as she did before the trial court, that her
complaint alleged facts that, if proved, were sufficient to
establish a reasonably foreseeable risk of the type of harm
that befell Delgado.
C.  The Court of Appeals Decision
	        As noted, the Court of Appeals reversed. As to the
Zone defendants, relying on several of this court’s previous
decisions, the Court of Appeals concluded that plaintiff had
alleged sufficient facts that, if proved, would permit a trier
of fact to find that (1) it was reasonably foreseeable to the
Zone defendants that people standing in line outside the Zone
late at night were at risk of harm from violent assault; and
(2) Delgado’s death was within that general class of harm.
Piazza, 271 Or App at 509, 510-11. The court further concluded
that the circumstances alleged in the complaint were not “so
highly unusual, or the sequence of events so attenuated, that
68	                                                         Piazza v. Kellim

no reasonable person in the Zone defendants’ position could
have anticipated the harm to Delgado.” Id. at 512. Indeed, the
court opined, “[a] jury could find, based on the facts alleged
in the complaint, that the link between Ayala’s crime, the
Zone defendants’ conduct, and Delgado’s death was relatively
straightforward”; defendants exposed Delgado to a risk of
harm from violent assault when they left her to line up and
wait on the street in a high-crime area, where a criminal
could approach the line and shoot at the Zone’s business invi-
tees. Id. Therefore, the Court of Appeals reasoned, plaintiff
had satisfied her pleading burden with respect to the issue of
foreseeability as to the Zone defendants.
	        For similar reasons, as to the Rotary defendants,
the Court of Appeals concluded that the complaint suffi-
ciently alleged foreseeability of the risk of harm in at least
one of plaintiff’s specifications of negligence—leaving the
students in a high-crime area—to withstand a motion to
dismiss plaintiff’s claim under ORCP 21 A(8).5 Piazza, 271
Or App at 513-14. Plaintiff alleged that prior crimes in and
around the Zone were “publicized in local and/or national
media, and [the Rotary defendants] knew, or in the exercise
of reasonable care, should have known, about the dangers of
leaving [plaintiff] at [the Zone] on the date and at the time
in question.” Id. The court concluded, from those facts, that
a reasonable juror could find that the host parents’ conduct
had exposed Delgado to a reasonably foreseeable risk of vio-
lent assault and that the type of harm that actually befell
her was within that general class. Id. at 514.
	          Judge Edmonds dissented. As he saw the case,
    “the very tragic specific harm that befell plaintiff’s dece-
    dent was the result of a random shooter who was mentally
    ill and who undertook to shoot ‘preppies.’ The randomness
    of his criminal target demonstrates that it could have just
    as well have been committed at a soccer or football game,
    an outside youth church or synagogue gathering, a mall,
    a public or private school event, or any place where young
    people typically gather. Giving plaintiff the benefit of all
    reasonable inferences, it was a mere happenstance that

	5
       The parties do not discuss plaintiff’s remaining specifications of negligence
as to the Rotary defendants. Accordingly, we do not consider them further.
Cite as 360 Or 58 (2016)	69

   the shooter chose the line of young people outside the Zone
   defendant’s club as his target. For purposes of reasonable
   foreseeability, a specific risk of harm is only within the
   scope of a general risk of harm if the specific risk of harm
   resulting in the injury is qualitatively similar to other fore-
   seeable specific risks of harm that fall within a general
   risk of harm. That test is not satisfied by plaintiff’s allega-
   tions. The circumstances of the random shooting spree in
   this case are unrelated to plaintiff’s ‘high crime area’ alle-
   gations. For these reasons, the specific risk of harm from
   a random shooting spree like the one in this case is not
   within the general risk of harm alleged by plaintiff.”
Piazza, 271 Or App at 522-23 (Edmonds, S. J., dissenting).
	        Echoing Judge Edmonds’ dissent, all defendants
assert on review that the type of crime that occurred—
which they describe as a “random spree shooting”—was
unforeseeable as a matter of law. They argue that the Court
of Appeals majority erred by describing the scope of the
risk of harm too generally and by relying on the occurrence
of prior crimes that were dissimilar to the circumstances
of the crime at issue. In short, they assert that the Court
of Appeals expanded the concept of general risk of harm
beyond the practical realities of what business operators,
parents, and adult supervisors should reasonably anticipate
as risks of harm. Defendants also assert that courts in other
jurisdictions have limited liability in circumstances such as
those present here.
	        Plaintiff responds that this court’s prior decisions
have held that a plaintiff need not allege and prove the pre-
dictability of the actual sequence of events that caused the
harm in question, but rather, must plead and prove facts
showing a generalized risk of the types of incidents and inju-
ries that occurred. Plaintiff urges that, under that frame-
work—where all reasonably foreseeable risks of harm are
relevant, not merely the particular harm that actually befell
Delgado—plaintiff’s factual allegations were sufficient to
state a claim with respect to foreseeability.
                         II. ANALYSIS
	      The concept of foreseeability embodies a prospective
judgment about a course of events; it “therefore ordinarily
70	                                                            Piazza v. Kellim

depends on the facts of a concrete situation” and, if dis-
puted, is a jury question. Fazzolari v. Portland School Dist.
No. 1J, 303 Or 1, 4, 734 P2d 1326 (1987).6 Foreseeability
plays a role in at least two overlapping common-law negli-
gence determinations: (1) whether the defendant’s conduct
unreasonably created a foreseeable risk of harm to a pro-
tected interest of the plaintiff such that the defendant may
be held liable for that conduct—formerly described in terms
of “duty” and “breach” as measures of negligent conduct;
and (2) whether, because the risk of harm was reasonably
foreseeable, the defendant may be held liable to the plaintiff
for the particular harm that befell the plaintiff—a concept
that traditionally was referred to as “proximate” cause and
which, in our current analytical framework, operates as a
legal limit on the scope of a defendant’s liability for negligent
conduct. See generally Fazzolari, 303 Or at 11-18 (describing
role of foreseeability in negligence determinations formerly
described in terms of duty-breach and proximate cause); see
also Deckard v. Bunch, 358 Or 754, 761, 370 P3d 478 (2016).
In synthesis,

	6
       Although often described as an “issue of fact,” id., it is more precise to
describe the foreseeability determination as a blended factual and normative—
that is, value-laden—inquiry that ordinarily is committed to juries. As one com-
mentator has explained,
    “[W]hen ‘foreseeable’ is used in what seems to be a kind of factual sense, as a
    prediction or anticipation, there is no implicit degree of likelihood in the ref-
    erence. It may run from possible through likely and probable and even on up
    to certainty. * * * When ‘foreseeable’ is used in the context of determining if
    a defendant acted unreasonably, not in the fashion of the reasonable person,
    then the degree of likelihood can be factored in among all the variables enter-
    ing into the calculus of harm, thus giving it a pragmatic use. In this context
    ‘foreseeable’ is modified explicitly or implicitly by ‘reasonably.’
    	    “* * * * *
    	    “More subtle is the use of ‘foreseeable’ in a mode that is not purely fac-
    tual or predictive. To say that something is or was foreseeable can trigger an
    interpretation that it is being used in the purely predictive mode because the
    verb ‘to be’ is so often used as if information is being provided, although often
    opinion or value judgments are involved. Comparison with a lay use of ‘fore-
    seeable’ may be instructive. If a passenger in an automobile were to say to
    the driver, ‘If you keep driving like this, it’s foreseeable we’ll have a wreck,’ or
    just, ‘You’re risking our lives,’ it is not likely he is only conveying information.
    It is a warning and a call for different behavior. Likewise, after the wreck, for
    someone to say, ‘Well, it sure was foreseeable,’ is to imply that it could have
    been prevented and likely that it should have been.”
Walter Probert, Torts and Language, 48 Fla L Rev 841, 854-55 (1996) (footnotes
omitted).
Cite as 360 Or 58 (2016)	71

    “unless the parties invoke a status, a relationship, or a par-
    ticular standard of conduct that creates, defines, or limits
    the defendant’s duty, the issue of liability for harm actually
    resulting from defendant’s conduct properly depends on
    whether that conduct unreasonably created a foreseeable
    risk to a protected interest of the kind of harm that befell
    the plaintiff. The role of the court is what it ordinarily
    is in cases involving the evaluation of particular situa-
    tions under broad and imprecise standards: to determine
    whether upon the facts alleged or the evidence presented
    no reasonable factfinder could decide one or more elements
    of liability for one or the other party.”

Fazzolari, 303 Or at 17.
	       Under that framework, in effect, the more traditional
duty-breach and proximate-cause analyses in a common-law
negligence claim are subsumed in the question whether the
defendant’s conduct resulted in a reasonably foreseeable and
unreasonable risk of harm to a protected interest of the kind
that the plaintiff suffered. Towe v. Sacagawea, Inc., 357 Or
74, 86, 346 P3d 1207 (2015).7 But, as the passage quoted
above from Fazzolari observes, the duty-breach analysis is
not always subsumed in a foreseeability analysis. Rather,
the nature and scope of the duty owed by the defendant to
the plaintiff can be created, defined, or limited based on,
among other things, the relationship between or status of

	7
        Although uniform jury instructions are not sources of law, it often is useful
to consider how sometimes elusive legal principles are understood and applied in
practice by the trial judges and lawyers who are charged with following them. To
that end, Oregon’s Uniform Civil Jury Instructions describe the overlapping roles
of foreseeability in the following way. Under UCJI 20.01, the jury is instructed
to determine whether (1) “[t]he defendant’s conduct was negligent”; (2) the defen-
dant’s negligence “was a cause of harm to the plaintiff”; and (3) “[t]he harm was
reasonably foreseeable.” UCJI 20.02 provides that a “person’s conduct is negligent
if that person fails to use reasonable care.” That instruction further provides:
     “In deciding whether a person used reasonable care, consider the dangers
     apparent or reasonably foreseeable when the events occurred.”
A separate uniform jury instruction based on Fazzolari, UCJI 20.03, addresses
the issue of foreseeability as a limit on liability:
     “A person is liable only for the reasonably foreseeable consequences of his or
     her actions. There are two things that must be foreseeable. First, the plain-
     tiff must be within the general class of persons that one reasonably would
     anticipate might be threatened by the defendant’s conduct. Second, the harm
     suffered must be within the general class of harms that one reasonably would
     anticipate might result from the defendant’s conduct.”
72	                                                           Piazza v. Kellim

the parties. Towe, 357 Or at 86. So understood, our thresh-
old inquiry is whether plaintiff has invoked a particular sta-
tus or relationship that affects our analysis.
	         In her complaint, plaintiff invoked two special
relationships that informed defendants’ obligations toward
Delgado, which defendants have not challenged at this point
in the litigation. The first, which plaintiff invoked as to the
Zone defendants, is the relationship between possessors of
land and persons whom they invite onto their premises. As
possessors of premises, the Zone defendants had an obliga-
tion to take reasonable steps to protect the nightclub’s visi-
tors from reasonably foreseeable criminal acts by third per-
sons. See, e.g., Uihlein v. Albertson’s, Inc., 282 Or 631, 639,
580 P2d 1014 (1978) (noting that this court previously had
adopted standard set out in Restatement (Second) of Torts
section 344 comment f (1965) “as being a part of the law of
this state”).8 The second special relationship, which plain-
tiff invoked with respect to the Rotary defendants, is the
relationship between a child and a person entrusted with
that child’s care. For example, schools have a special duty to
students “apart from any general responsibility not unrea-
sonably to expose people to a foreseeable risk of harm,” and
the “scope of th[at] obligation does not exclude precautions
against risks of crime or torts merely because a third person
inflicts the injury.” Fazzolari, 303 Or at 19, 20.
	        In both special relationships asserted by plaintiff,
the obligation to protect against risks of harm—including
the risk of harm from third-party criminal acts—is broader
than that which might apply in the absence of such a

	8
         Restatement section 344, comment f states:
      	    “Since the possessor is not an insurer of the visitor’s safety, he is ordi-
      narily under no duty to exercise any care until he knows or has reason to
      know that the acts of the third person are occurring, or are about to occur.
      He may, however, know or have reason to know, from past experience, that
      there is a likelihood of conduct on the part of third persons in general which
      is likely to endanger the safety of the visitor, even though he has no reason to
      expect it on the part of any particular individual. If the place or character of
      his business, or his past experience, is such that he should reasonably antic-
      ipate careless or criminal conduct on the part of third persons, either gener-
      ally or at some particular time, he may be under a duty to take precautions
      against it, and to provide a reasonably sufficient number of servants to afford
      a reasonable protection.”
Cite as 360 Or 58 (2016)	73

relationship, but, because those relationships do not pre-
scribe a particular scope of duty, that obligation does not
extend to risks that are not reasonably foreseeable. Id. at
16-17, 20.9 Thus, although each defendant is alleged to have
had a special relationship with Delgado and a corresponding
duty to take reasonable precautions to protect her against
criminal conduct by third parties, those duties extended to
only reasonably foreseeable criminal conduct. See id.
	         In this case, defendants do not dispute, based on
the facts alleged in plaintiff’s complaint, that they held the
asserted special relationships toward Delgado, under which
they had obligations to take reasonable precautions to pro-
tect Delgado against foreseeable risks of harm. Nor have
defendants asserted that plaintiffs’ allegations are insuffi-
cient, if proved, and if the risk of harm to Delgado otherwise
was foreseeable, to establish that defendants failed to use
reasonable care to protect Delgado from harm. Stated dif-
ferently, apart from their general foreseeability challenge,
defendants do not separately assert that plaintiffs’ alle-
gations were insufficient to establish, if proved, that their
conduct was negligent.10 Instead, as framed by defendants’
motions, the only question before us is whether plaintiff’s
complaint alleged sufficient facts to withstand an ORCP 21
A(8) motion with respect to the issue of foreseeability as a
legal limit on the scope of defendants’ liability.
	        The question is whether plaintiff has alleged facts
sufficient, if proved, to permit a jury determination that
reasonable persons in defendants’ positions would have

	90
       Even when a special relationship is the basis for the duty of care owed
by one person to another, this court has held that, if the special relationship (or
status or standard of conduct) does not prescribe a particular scope of duty, then
“[c]ommon law principles of reasonable care and foreseeability of harm are rele-
vant.” Cain v. Rijken, 300 Or 706, 717, 717 P2d 140 (1986) (quoted with approval in
Fazzolari, 303 Or at 16-17); see also Oregon Steel Mills, Inc. v. Coopers & Lybrand,
LLP, 336 Or 329, 342, 83 P3d 322 (2004).
	10
       It follows that issues pertaining to whether defendants were negligent,
such as “the feasibility and cost of avoiding the risk,” which “bear on the rea-
sonableness of defendant’s conduct,” are not before us. See Donaca v. Curry Co.,
303 Or 30, 38-39, 734 P2d 1339 (1987) (explaining difference between general
foreseeability and duty/breach issues; whether county was negligent for failing
to maintain right-of-way depended on whether county’s action was reasonable
in light of risk, including feasibility and cost of avoiding risk); see also Hughes v.
Wilson, 345 Or 491, 502, 199 P3d 305 (2008) (applying principle).
74	                                                 Piazza v. Kellim

foreseen a risk to Delgado’s safety “of the kind of harm that
befell” her. See Fazzolari, 303 Or at 17. “The community’s
judgment, usually given voice by a jury, determines whether
the defendant’s conduct met that threshold in the factual
circumstances of any particular case.” Chapman v. Mayfield,
358 Or 196, 206, 361 P3d 566 (2015). “The court intervenes
only when it can say that the actor’s conduct clearly meets
the standard or clearly falls below it.” Fazzolari, 303 Or at
18 (quoting Stewart v. Jefferson Plywood Co., 255 Or 603,
607, 469 P2d 783 (1970)).
	In Stewart, this court elaborated on the nature of a
court’s role in the foreseeability determination. In that case,
the plaintiff volunteered to assist in putting out a fire that
the defendant had started at one plant and that then had
spread to an adjacent warehouse. The plaintiff and others
were hoisted to the roof of the warehouse by a forklift. In
attempting to put out the fire, plaintiff fell through a cov-
ered skylight—covered by corrugated plastic and a film of
dust so that it was indistinguishable from the rest of the
roof—to the warehouse floor, suffering injuries. The ques-
tion, the court said, was “whether plaintiff’s injury and the
manner of its occurrence was so highly unusual that we can
say as a matter of law that a reasonable man * * * would not
have reasonably expected the injury to occur.” Stewart, 255
Or at 609.
	       The answer required identification of a court’s
proper gate-keeping role:
      	 “The temptation here is to leave the question to the jury
      where the problem can be solved by an intuitive process,
      thus relieving us from the judicial task of reaching a rea-
      soned conclusion. Unfortunately, however, we have inher-
      ited the duty to exercise control over the jury and to keep it
      within the bounds set for it, vague as they may be.”
Id. at 607. On the facts presented, the court held:
      	 “A reasonable man could foresee that a fire started by
      him might spread to his neighbor’s building and that in the
      effort to extinguish the fire his neighbor or a third person
      coming to his aid might be injured as a result of a variety
      of possible circumstances—by being burned, by falling off
      a ladder, by falling off a roof, by falling through a burned
Cite as 360 Or 58 (2016)	75

   portion of the roof, or by other similar risks normally asso-
   ciated with fighting fires.
   	 “It is less likely that an injury would occur as a result
   of falling through a skylight and even less likely that one
   would fall through a skylight because it was covered in a
   manner that made it appear to be a solid part of the roof.
   But, although such conditions may not be a common cause
   of injury, on the other hand it cannot be said that this set-
   ting for possible injury is so uncommon that a jury could
   not reasonably describe as foreseeable the risk of harm
   which it creates.”
Id. at 610. In short, the circumstances, although unusual,
were not “out of the range within which a jury could deter-
mine that the injury was reasonably foreseeable.” Id. at
609-10.
	        In a later case involving third-party criminal con-
duct, this court recognized a limit on how generally the
type of harm at risk can be described. In Buchler v. Oregon
Corrections Div., 316 Or 499, 853 P2d 798 (1993)—a case on
which defendants here heavily rely—this court considered
whether the state could be held liable in negligence for the
death and serious injury of victims of violence inflicted by an
escaped prisoner. The prisoner was a member of a work crew
in a remote location. The crew supervisor had left a state
van’s keys in the ignition. The prisoner escaped in the van,
drove 50 miles to his mother’s house, stole a gun, and, two
days after the escape, shot two people, killing one of them.
The trial court granted the state’s summary judgment
motion, and, on review, the plaintiffs’ claims raised several
issues concerning foreseeability relating to the plaintiffs’
various theories of negligence.
	        One foreseeability issue in Buchler concerned the
plaintiffs’ claim that the state had facilitated the harm to
the victims by leaving the van’s keys in the ignition. Id. at
507. The court explained that describing the type of harm
at risk too generally—such as stating that criminals com-
mit crimes or that escaped prisoners may commit crimes
while at large—makes criminal acts the legal responsibility
of everyone who may have contributed in some way to the
criminal opportunity. Id. at 511. Such a conception would
76	                                                  Piazza v. Kellim

sweep too broadly because “mere ‘facilitation’ of an unin-
tended adverse result, where intervening intentional crim-
inality of another person is the harm-producing force, does
not cause the harm so as to support liability for it.” Id. at
511-12. The court in Buchler ultimately concluded as a mat-
ter of law that the harm that the plaintiffs suffered was not
a reasonably foreseeable consequence of the risk created by
leaving the keys in the van. Id. at 514. In doing so, the court
clarified that, for a jury question to arise with respect to
foreseeability, the relevant risk of harm must be reasonably
foreseeable. Id.
	        In keeping with its focus in Stewart, Fazzolari, and
Buchler, this court recently has emphasized the centrality—
in determining whether a triable issue has been established
with respect to foreseeability—of the plaintiff’s description
of the injury-producing factual circumstances in the context
of her theory of liability:
      “[A]s part of determining whether the defendant’s conduct
      was unreasonable, there is nothing surprising about a con-
      ception of foreseeability that assesses the overall ‘setting
      for possible injury’ under the plaintiff’s theory of liability.
      Drawing on the plaintiff’s theory of liability, the court in
      Stewart determined that it was not unlikely that an ‘injury
      would occur in this manner in the course of fighting a fire.’ ”
Chapman, 358 Or at 208 (citations omitted); see also
Fazzolari, 303 Or at 22 (stating that, where school knew of
assaults at specific locations on school property, trier of fact
could find that school should have warned students of that
general risk, which included risk of rape).
	In Chapman, this court held, in reviewing a grant
of summary judgment, that the trial court had properly dis-
missed the plaintiff’s action against a tavern that allegedly
had over-served a visibly intoxicated patron who, in turn, left
the tavern on foot, walked down the street to another busi-
ness establishment, and unintentionally fired a concealed
handgun through the door, injuring two people inside. 358
Or at 198. To establish foreseeability, the plaintiff primarily
relied on (1) expert opinion evidence that intoxicated persons
frequently become violent and that medical, scientific, and
lay journals have documented a connection between violence
Cite as 360 Or 58 (2016)	77

and alcohol for decades; and (2) experiential observations by
a bartender at another tavern in the vicinity about the link
between alcohol and violence. Id. at 220. We concluded that
the plaintiff’s pleading and evidence did not create a triable
issue of fact with respect to foreseeability. We explained:
   “[E]ven though the precise mechanism of harm need not
   be foreseeable, it is necessary to describe the type of harm
   at risk and the class of plaintiffs at risk with reference to
   the particular factual circumstances of the case, as gleaned
   from the pleadings and evidence in the record. Based on
   the circumstances of this case, we conclude that the appro-
   priate characterization of the type of harm at issue is an
   unintentional attack by a visibly intoxicated patron after
   he had left defendant’s premises. Cf. Fazzolari, 303 Or at
   21-22 (characterizing type of harm from failing to pro-
   vide adequate warning or security as an assault on stu-
   dents at school); Stewart, 255 Or at 610 (describing type
   of harm from negligently setting fire as injuries that may
   occur while attempting to extinguish fire). We further con-
   clude that plaintiffs’ evidence was insufficient because it
   described the risk of harm too generally.
   	 “As explained, evidence that it is common knowledge
   that intoxicated people have impaired judgment and may,
   therefore, behave improperly is too general to establish
   that a person who serves a visibly intoxicated person rea-
   sonably should expect that that person will commit an
   assault. Evidence making the bare assertion that it is com-
   mon knowledge that visibly intoxicated persons frequently
   become violent is no more sufficient. Such evidence does not
   create a permissible inference that a particular defendant
   should have been aware of an unreasonable risk of violent
   harm or that a particular plaintiff was within the class of
   persons at risk of such harm.”
Chapman, 358 Or at 220-21.
	        Other, more specific evidence—such as evidence
showing the rate of incidence of violence among intoxicated
drinkers, the types of intoxicated drinkers who become vio-
lent, or the class of persons at risk of violent harm from a
visibly intoxicated person—could have been adduced in
Chapman that may have permitted different inferences so
as to preclude summary judgment. The omission of such evi-
dence, we held, distinguished the circumstances in Chapman
78	                                                        Piazza v. Kellim

from those in Stewart, where this court was willing, in the
absence of more direct evidence, to use general knowledge
to supply an inference that the risk of harm was reasonably
foreseeable. Id. at 221; see Stewart, 255 Or at 611 (although
record did not contain statistics on frequency of injuries
resulting from falling through concealed skylights, “general
knowledge” of manner in which injuries occur supported
foreseeability of how injury could occur in such manner). The
plaintiff’s evidentiary proffer in Chapman did not include
facts that would support an inference—based on general
knowledge—that it was reasonably foreseeable to the defen-
dant that the visibly intoxicated patron would unintention-
ally attack the plaintiffs at a different location. Chapman,
358 Or at 222; see Buchler, 316 Or at 511 (disavowing broad
conception of foreseeability based on purported “common
knowledge” connecting thieves, guns, and crimes).11
	        Before summing up the principles that govern our
analysis, we briefly turn to one of defendants’ primary points
of emphasis. There is an understandable thirst in this area
of the law for bright-line rules that—at least in theory—can
produce predictable results from case to case in negligence
claims. In urging this court to require a high degree of sim-
ilarity between the nature and circumstances of prior crim-
inal acts and the criminal act at issue here, defendants note
that some courts have analyzed whether a particular crim-
inal act was reasonably foreseeable based on prior similar
acts, and others have looked to the place and character of
the location of the act. See, e.g., McKown v. Simon Property
Group, Inc., 182 Wash 2d 752, 768-74, 344 P3d 661, 667-70
(2015) (discussing the two approaches). Courts following the
“prior similar acts” approach have held that prior acts must
be sufficiently similar in character to the act at issue before
the latter can be deemed to have been foreseeable.12
	11
       This court has “cautioned against turning fact-specific decisions on fore-
seeability into rules of law.” Chapman, 358 Or at 222 (quoting Bailey v. Lewis
Farm, Inc., 343 Or 276, 289, 171 P3d 336 (2007) (citing Fazzolari, 303 Or at 16)).
In Chapman, we concluded:
    “We do not depart from that precept here; rather, our decision turns on the
    specific facts in the record before us.”
Id.
	12
       See, e.g., Romero v. Giant Stop-N-Go of New Mexico, Inc., 146 NM 520,
212 P3d 408 (2009) (holding that evidence of prior robberies, theft, physical
Cite as 360 Or 58 (2016)	79

	        Under the “place and character” test, courts have
tended to focus on whether the place and character of a loca-
tion or business “invited” the criminal behavior. See, e.g.,
Early v. N.L.V. Casino Corp., 100 Nev 200, 204, 678 P2d 683,
685 (1984), partially overruled on other grounds by Moody
v. Manny’s Auto Repair, 110 Nev 320, 871 P2d 935 (1994).
In response to a claim that an unprovoked attack at a large
music festival was foreseeable based on incidents at previ-
ous festivals, and because crime is foreseeable when large
groups of people gather, the New York Court of Appeals
held that “[a] random criminal attack of this nature is not
a predictable result of the gathering of a large group of peo-
ple.” Maheshwari v. City of New York, 2 NY3d 288, 294, 810
NE2d 894 (2004). In the same vein, the California courts
have emphasized that “it is difficult if not impossible in
today’s society to predict when a criminal might strike,” and
“if a criminal decides on a particular goal or victim, it is
extremely difficult to remove his every means for achieving
that goal.” Wiener v. Southcoast Childcare Centers, 32 Cal
4th 1138, 1147, 1150, 88 P3d 517, 524 (2004).

	        The concerns expressed in the cited cases are rea-
sonable; in fact, they animated in part this court’s rejec-
tion of the facilitation rationale that the plaintiff in Buchler
presented. We also recognize the relevance of the fac-
tors that other courts have identified in the foreseeability
analysis. In many sets of factual circumstances, multiple
considerations—including the place and character of the
location of a criminal act, and the occurrence of prior sim-
ilar acts—are relevant. However, as we repeatedly have

altercations, domestic violence, harassment, narcotics and suspicious persons at
same location did not make targeted and deliberate shooting of plaintiff’s dece-
dents foreseeable). Under that approach, courts also have held that the prior acts
must have happened in the vicinity of the location where the act at issue occurred
before that act can be deemed foreseeable. See Sigmund v. Starwood Urban Inv.,
475 F Supp 2d 36, 46 (D DC 2007), aff’d, 617 F3d 512 (DC Cir 2010) (looking at
a five-block radius around area of the attack and concluding that sudden and
unexpected attack was not foreseeable). In addition, courts using that formula
have held that the prior acts must have happened relatively recently, Dwiggins
v. Morgan Jewelers, 811 P2d 182, 183 (Utah 1991) (one robbery five years earlier
insufficient to make subsequent robbery foreseeable), and with some degree of
frequency. See Dudas v. Glenwood Golf Club, Inc., 261 Va 133, 140, 540 SE2d 129
(2001) (two robberies within the month preceding the attack on plaintiff was not
enough for foreseeability because there was no imminent danger).
80	                                               Piazza v. Kellim

stated, our preference for giving voice to the community’s
judgment through a jury determination prevails, except in
extreme cases, where no reasonable person could find that
the harm that befell the plaintiff was reasonably foreseeable.
Fazzolari, 303 Or at 17-18; Stewart, 255 Or at 607. Under
that framework, a narrow focus on the actual sequence of
events that led to a particular injury to a particular person
“misunderstands foreseeable risk.” Towe, 357 Or at 106 n 17.
A defendant need not have been able to precisely forecast a
specific harm to a particular person to be held liable. See id.
This court punctuated that point in Fazzolari when it made
the following observations about Stewart:
   “[T]he Stewart opinion acknowledged that ‘[w]hether
   the harm in a particular case is deemed foreseeable may
   depend upon the manner in which we describe “harm.” This
   is even more true of “risk.” Stewart itself made clear that
   the court meant generalized risk of the types of incidents
   and injuries that occurred rather than the predictability
   of the actual sequence of events. One reasonably might
   foresee that a fire might place others seeking to protect a
   neighboring building in danger of injury by falling as well
   as by being burned, even though one might not foresee that
   the fall would be through an insecurely covered and hidden
   skylight. So, at least, a jury might find.’ ”

Fazzolari, 303 Or at 13 (citations omitted).

	        Nor is it necessary that a particular quantifiable
mass of similar types of incidents involving a narrow class of
victims have occurred at a precise location for a triable issue
of fact with respect to foreseeability to arise. In Fazzolari,
for example, a jury question was created by generalized
and somewhat limited evidence concerning the defendant
school’s prior experience with criminal activity:
   	 “Here there was evidence that a woman reportedly had
   been sexually assaulted on the school grounds 15 days
   before the attack on plaintiff, and plaintiff attempted
   to introduce evidence of various other kinds of attacks.
   Obviously a school’s responsibility for students’ safety
   against assault is not limited to the risk of rape, and evi-
   dence of foreseeability will differ depending on whether the
   risk of injury is claimed to be specific to a school, or schools
Cite as 360 Or 58 (2016)	81

   generally, or a neighborhood, or a class of potential victims
   such as women or particular ethnic groups.”
Id. at 21 (citation omitted).
	         But that does not mean that the foreseeability
determination is untethered to principle. As our previous
decisions show, negligence claims arising from third-party
criminal acts often involve the defendant’s failure to moni-
tor or screen a dangerous third person or the placement of
another person at unreasonable risk of criminal harm at a
location and in circumstances that are unsafe. In either sit-
uation, there is a common requirement: a trier of fact must
be able to find from concrete facts that a reasonable person
in the position of the defendant reasonably would have fore-
seen that the person or location and circumstances posed a
risk of criminal harm to persons such as the plaintiff. See
generally Towe, 357 Or at 86; Oregon Steel Mills, 336 Or at
340; Fazzolari, 303 Or at 17. Facts pertaining to the similar-
ity, frequency, and recency of prior criminal acts, committed
under the same or similar circumstances, or at or near the
same location, and involving the same or similar types of
victims, as well as the place and character of the location
of the current criminal act, are all relevant to the determi-
nation. See Chapman, 358 Or at 220-22; see also Buchler,
316 Or at 511-12; compare Uihlein, 282 Or at 640-41 (store
not liable for shopper assaulted in supermarket when little
evidence of unsafe location), with Brown v. J.C. Penney Co.,
297 Or 695, 710, 688 P2d 811 (1984) (store liable for shopper
attacked in parking lot where there was ample evidence of
criminal activity in area). Defendants have not persuaded
us that those principles require further refinement or that
the circumstances of this case present a compelling reason
to do so.
                     III. APPLICATION
	        As discussed, defendants repeatedly recount the
details of this particular shooting, emphasizing the mental
illness of the shooter, his grudge against teens, and char-
acterizing the attack as a “random spree,” and the shooting
as “indiscriminate.” Defendants then fault plaintiff’s allega-
tions of foreseeability because they involve different facts.
To the extent that their challenge focuses on the precise
82	                                                        Piazza v. Kellim

sequence of events that occurred in this case, defendants
invite a taxing level of comparison that this court consis-
tently has rejected. As noted, contrary to defendant’s focus,
foreseeability has reference to the “generalized risk of the
types of incidents and injuries that occurred[,] rather than
the predictability of the actual sequence of events.” Fazzolari,
303 Or at 13 (discussing Stewart). Moreover, plaintiff’s alle-
gations support an inference that the attack in this case was
not random in the sense of being indiscriminate or lacking a
plan or purpose. The complaint alleged that the shooter spe-
cifically targeted the Zone because it was a teenage night-
club that attracted young people like Delgado. Although the
shooter could have chosen other locations to carry out his
plan, that fact does not make the shooting any less foresee-
able to defendants.
	        We agree with defendants that, among the numer-
ous facts alleged in plaintiff’s complaint, some, viewed in
isolation, would be too general to sustain her threshold
pleading burden with respect to foreseeability. For example,
the allegations that violent crimes have occurred in down-
town Portland over a period of several decades, and in some
instances, many blocks away from the Zone, and a recita-
tion of general crime statistics for “these neighborhoods,”
alone add little to the analysis.13 Defendants are right to
observe that such generalized allegations—substantially
separated in time and distance from the pertinent events

	13
       For example, plaintiff listed the crime statistics of “these neighborhoods”
in her opening brief before the Court of Appeals:
    “From September 2006 through December 2006—1 homicide, 282 assaults,
    3 rapes, 67 robberies, 15 sex crimes and 2 kidnappings;
    “From January 2007 through December 2007—3 homicides, 16 rapes,
    716 assaults, 187 robberies, 34 sex crimes and 7 kidnappings;
    “From January 2008 through December 2008—13 rapes, 709 assaults,
    145 robberies, 45 sex crimes, and 5 kidnappings;
    “From January 4, 2009 through January 18, 2009 (the two weeks preceding
    the incident at issue here)—31 assaults, 7 robberies and 2 sex crimes.”
	   Plaintiff does not, however, specify exactly what she means by “these neigh-
borhoods,” beyond the fact that she is referring to the Chinatown/Old Town and
downtown neighborhoods. Plaintiff also fails to provide information regarding
the proximity of those crimes to the Zone. The “neighborhood” in question spans
52 square blocks, and the “downtown entertainment district” comprises nine
blocks.
Cite as 360 Or 58 (2016)	83

here—closely resemble the sort of attenuated circumstances
that this court eschewed in Buchler.

	         However, at the pleading stage of this case, the dis-
positive issue is whether the allegations of foreseeability in
plaintiff’s complaint can withstand a motion to dismiss. In
making that determination, we conclude that the proper
level of generality at which to compare the criminal history
on which plaintiff relies and the shooting in this case is to
treat both as falling within the category of violent assaults.
This court’s previous decisions generally prescribe a rela-
tively broad level of generality in assessing the reasonable
foreseeability of criminal conduct as a limit on liability. See,
e.g., Fazzolari, 303 Or at 21 (treating sexual assault and
other types of assaults at a school as falling in same cate-
gory for purposes of foreseeability). That is especially true
where, as here, the risk of harm at a particular location is
at issue. See, e.g., Uihlein, 282 Or at 641 (“[T]here must be
something to alert the storekeeper to the likelihood of harm
of some kind from a criminal agency.”). That only makes
sense. When a business owner is on notice that—in the
absence of reasonable precautions—assaultive conduct can
be anticipated where people are waiting in line to enter its
premises, it rings hollow to suggest that a specific crime pat-
tern triggers the owner’s duty to protect patrons only with
regard to those specific crimes (such as gang-related homi-
cide) that have occurred. Only if we can say that the types of
historical crimes are so dissimilar, or so remote in time and
location from the current crime that no reasonable person
could determine that the current crime was foreseeable, will
a court intervene to remove the matter from the jury as a
matter of law. Fazzolari, 303 Or at 13, 17-18, 21.

	        Here, plaintiff alleged a repeated—if somewhat
unevenly spaced—history of violent assaults, including gun
violence, at and in the neighboring vicinity of the Zone, and
a known risk of such violence in the future. In the years
preceding the 2009 shooting, the downtown entertainment
district—a nine block area that included the Zone—had
been “plagued by recurrent incidents of violence,” which
were “linked by police to gang activity and to clubs in the
district exceeding capacity and serving too much alcohol.”
84	                                                         Piazza v. Kellim

In 2005, a series of shootings in that district left two peo-
ple dead and four injured. “It was known by Portland police
and club owners alike that there was a high probability that
more shootings would take place in the downtown entertain-
ment district.” Pertinent to the foreseeability of that risk
are plaintiff’s allegations asserting, in effect, that the Zone
defendants knew that teenage nightclubs such as the Zone
are especially susceptible to incidents of violent assault.
Plaintiff alleged that the Zone defendants had in the past
acknowledged the risks of harm posed by that history at the
Zone and in the downtown entertainment district. Plaintiff
also alleged that a gunman stood and loaded his gun on
that sidewalk, a gunman who was attracted to that location
because he could find young people standing where he found
and shot Delgado.
	        Those allegations would permit a reasonable trier of
fact to determine that a reasonable person in the position of
the Zone defendants reasonably would have foreseen a risk
of violent assault on the public sidewalk outside the night-
club, where underage patrons were queued up to enter. They
also are sufficient to permit a reasonable trier of fact to find
that the harm that befell Delgado was within the class of
harms at risk.14
	        The foregoing allegations would not, by themselves,
permit a finding that the risk of harm to Delgado was rea-
sonably foreseeable to the Rotary defendants. However,
plaintiff further alleged, with respect to those defendants,
that the prior violent assaults in and around the Zone were
“publicized in local and/or national media, and [the Rotary
defendants] knew, or in the exercise of reasonable care,
should have known, about the dangers of leaving [Delgado]
at the Zone nightclub on the date and at the time in ques-
tion.” Assuming, as we must at this stage of the proceedings,
the truth of those allegations, we cannot say that no trier of
fact reasonably could determine that a reasonable person

	14
        We deliberately do not assign a particular degree of significance or lack of
significance in the foreseeability determination to many of the facts alleged in
plaintiff’s complaint, in terms of tipping the scales in favor of the overall suffi-
ciency of plaintiff’s pleading. By emphasizing the core facts summarized above,
we simply note what, in our view, fundamentally surmounts the sufficiency
hurdle.
Cite as 360 Or 58 (2016)	85

in the position of the host parents would have foreseen a
risk of violent assault on the public sidewalk where they
left Delgado. The question whether plaintiff can adduce evi-
dence sufficient to create a triable issue of fact with respect
to those allegations, of course, is not presently before us.15
	        Moreover, on the facts alleged, we are unable to say
that a reasonable trier of fact would have to find that the
criminal harm that befell Delgado was categorically differ-
ent from the criminal harms of which the Rotary defendants
had notice, and that no reasonable factfinder could find that
the harm to Delgado fell within the class of harms of which
the Rotary defendants are alleged to have been aware. The
link between defendants’ allegedly negligent conduct and
the actual harm that befell Delgado was direct: Plaintiff
alleged that the Rotary defendants knew that there had
been a significant history of violent assault late at night at
or near the Zone, they took Delgado to the Zone and left her
there, and she was the victim of a violent assault. That chain
of events is not the sort of “concatenation of highly unusual
circumstances” that compels the conclusion that Delgado’s
death was not reasonably foreseeable as a matter of law. See
Stewart, 255 Or at 609.
                           IV. CONCLUSION
	        It bears repeating that, as framed by defendants’
motions, the issue before us is not whether plaintiffs’ alle-
gations were sufficient, if proved, to show that defendants’
conduct was unreasonable in light of a reasonably foresee-
able risk of harm to Delgado. Thus, we are not concerned—
for example—with whether any precautions that defen-
dants took or failed to take were reasonable in relation to
	15
        The Court of Appeals correctly understood that:
    “Plaintiff’s complaint does not rest on allegations that crime is generally
    foreseeable, or on a conclusory allegation that [t]he Zone is located in a high-
    crime area. Rather, plaintiff alleged specific facts that, if proved at trial,
    would establish that [t]he Zone nightclub had experienced violent crime,
    including homicidal violence. Assuming, as we must at this stage of the pro-
    ceedings, the truth of those allegations, and that the host parents were aware
    of those facts and nevertheless left Delgado there, a reasonable juror could
    conclude that the host parents’ conduct exposed her to a foreseeable risk of
    violent assault.”
Piazza, 271 Or App at 514.
86	                                              Piazza v. Kellim

the nature or degree of foreseeable risk of harm to persons
in Delgado’s circumstances. Instead, our exclusive focus is
on reasonable foreseeability as a legal limit on the scope of
defendants’ liability.
	In Fazzolari, this court stated:
   “Another person’s crime was once thought to lie beyond a
   defendant’s responsibility on grounds of ‘proximate cause,’
   Aune v. Oregon Trunk Railway, 151 Or 622, 630-31, 51 P2d
   663 (1935), but more recent decisions have dealt with the
   behavior of others, lawful or otherwise, as part of the gen-
   eral analysis of foreseeable risks.”
303 Or at 20. The court’s separation of foreseeability from
causation arose from a concern that proximate cause not be
invoked to improperly cut off claims by substituting a judi-
cial veto for what ordinarily is a jury determination. As this
court previously had stated:
   “[W]e cannot lose sight of the fact that we are simply mak-
   ing an allocation of the appropriate functions of the court
   and jury. The sole function of a rule of limitation in these
   cases is to tell the court that it must not let the case go to
   the jury. The jury should be given wide latitude in setting
   these limits of liability, whether it be done under a formula
   of negligence or causation.”
Dewey v. A.F. Klaveness & Co., 233 Or 515, 535, 379 P2d 560
(1963) (internal quotation marks and citation omitted).
	        In this case, plaintiff’s allegations accomplished—at
the pleading stage—what the evidentiary proffers in cases
such as Buchler and Chapman did not. Plaintiff alleged
concrete facts showing a history of violent assault at and
in the vicinity of the Zone nightclub and related facts that,
if proved, would support a determination that reasonable
persons in defendants’ positions would have foreseen a risk
of violent assault against patrons lined up on the sidewalk
outside the nightclub. Cf. Buchler, 316 Or at 511 (evidence
of generic fact that criminals commit crimes insufficient to
establish foreseeability).
	        Moreover, the type of harm that befell Delgado gen-
erally corresponded to the risk of violent assault to patrons
of the Zone in Delgado’s position that was reasonably
Cite as 360 Or 58 (2016)	87

foreseeable to defendants. Cf. Chapman, 358 Or at 219-22
(evidence involving violence by or among visibly intoxicated
patrons on premises at other bars did not support inference
that it was reasonably foreseeable that defendant tavern’s
well-behaved but visibly intoxicated patron would leave tav-
ern premises and unintentionally shoot victims at differ-
ent location). As our prior decisions teach, it is the general
nature of the harm at risk, not the precise nature of the
harm suffered by a particular victim, that controls the anal-
ysis.16 Plaintiff’s allegations were sufficient to withstand
defendants’ motion to dismiss.
	       The dissent’s disagreement with our conclusion
requires some discussion but, in the end, it presents similar
arguments to those of the dissent in the Court of Appeals.
	        The dissent’s most insistent disagreement with
our ultimate conclusion is grounded in our characteriza-
tion of the risk of harm in this case as violent assault. The
dissent would describe the relevant risk more narrowly as
“gang-, drug-, and alcohol-related violence.” 360 Or at 105
(Balmer, C. J., dissenting). According to the dissent, the
relevant risk in this case is defined in plaintiff’s complaint
“by the type of criminal,” not “the type of crime.” Id. But,
such narrow conceptions of the relevant risk are not sup-
ported by our previous decisions, including those on which
the dissent relies.
	        It is true that, in determining the appropriate level
of generality with which to characterize the risk of harm,
we “[d]raw[ ] on the plaintiff’s theory of liability” and “view[ ]
the defendant’s conduct through the lens of the particular
factual circumstances of the case.” Chapman, 358 Or at 208.
However, as we also reiterated in Chapman, in the context
of the pertinent factual setting, we “describe[e] the type
of harm at risk more generally, rather than predicting an
actual sequence of events.” Id. at 208-09. The problem with
the plaintiff’s evidentiary proffer on summary judgment in
	16
       Again, that is not to say that differences between past criminal acts com-
mitted at or near the Zone and the shooting in this case would not be relevant
to the issue of foreseeability as it relates to whether defendants’ conduct was
unreasonable in light of the risk of harm to patrons such as Delgado. That, as
previously noted, is a different matter.
88	                                            Piazza v. Kellim

Chapman was that it relied on “common knowledge” that
intoxicated tavern patrons engage in violence, an assertion
for which there was no factual support in the record and
which did not square up with the plaintiff’s pleaded theory
that the patron in that case unintentionally shot the plain-
tiffs. Id. at 220-21. In short, there was a failure of proof that
might have been remedied by the presentation of concrete
evidence that applied to the circumstances of the case. Id.
at 221. Although the dissent acknowledges, as it must, that
in assessing foreseeability, “we focus on generalized risks
of harm,” 360 Or at 100 (Balmer, C. J., dissenting), it never
fully comes to grips with that standard in appraising the
allegations of plaintiff’s pleading: A “generalized” risk of
harm inherently connotes an assessment at a relatively
broad level of generality.
	         The dissent also disagrees with our characteriza-
tion of the relevant risk of harm at issue in Fazzolari. As the
dissent sees it, Fazzolari’s discussion of the foreseeability of
different kinds of assaults, in particular, its statement that
“a school’s responsibility for students’ safety against assault
is not limited to the risk of rape,” 303 Or at 21, must be
understood as focused on “the reasonableness of the school’s
precautions,” 360 Or at 107 (Balmer, C.         J., dissenting),
rather than on foreseeabilty as a limit on a defendant’s lia-
bility. We do not share the dissent’s reading of Fazzolari.
When the quoted statement from Fazzolari is read in con-
text, it is apparent that the court was discussing foresee-
ability as it relates to the risk of harm. Before making that
statement, the court discussed the “issue of foreseeability
* * * [and whether] no reasonable factfinder could find the
attack on [the] plaintiff to have been a foreseeable risk.” 303
Or at 21. The court then referred to the “generalized risks
of the types of incidents and injuries” discussed in Stewart.
Fazzolari, 303 Or at 21. Applying that concept to the facts of
the case, the court noted the evidence of the sexual assault
on school grounds 15 days before the attack on plaintiff and
that the plaintiff had attempted to introduce evidence of
various other kinds of attacks. Id. The court then stated:
   “Obviously a school’s responsibility for students’ safety
   against assault is not limited to the risk of rape, and evi-
   dence of foreseeability will differ depending on whether the
Cite as 360 Or 58 (2016)	89

    risk of injury is claimed to be specific to a school, or schools
    generally, or a neighborhood, or a class of potential victims
    such as women or particular ethnic groups.”
Id. Only after discussing the foreseeability of the risk of harm
did the court refer, as an additional point, to foreseeability
as a measure of the defendant’s unreasonable conduct:
    “Also, the character and probability of the risk that is
    claimed to be foreseeable bears on the steps administrators
    reasonably should take to avert it.”
Id. at 21-22. In any event, that reference does nothing to dimin-
ish the fact that, as the court held, the proper level of gen-
erality with which to view the risk of harm under the plain-
tiff’s theory of liability in Fazzolari was the risk of assault in
general, not a particular type of assault. Id.
	        And, that was no aberration. As early as Danner v.
Arnsberg et al, 227 Or 420, 362 P2d 758 (1961), this court
held that, if a plaintiff’s injury was “of the same general
character” as an injury that could be anticipated, the injury
was not necessarily unforeseeable. Id. at 427-28. In Stewart,
we noted that “liability is confined to harms * * * that are
of the general kind to be anticipated from the [allegedly
tortious] conduct.” 255 Or at 608-09 (quoting Harper &
James, The Law of Torts Introduction xl (1956) (emphasis
and brackets added)). Fazzolari adopted the same stan-
dard. 303 Or at 21. In short, the question is whether, in
the factual setting of the case, the harm suffered by the
plaintiff is of the same general kind to be anticipated from
the defendants’ allegedly negligent conduct. Nothing that
we have said since Fazzolari has altered that fundamental
construct.
	        As that principle applies here, the fact that the
history of violent assaults at and in the neighborhood
surrounding the Zone included gang-, alcohol-, and drug-
related conduct, and shootings, as well as other forms of
physical violence, is not dispositive of the foreseeability
inquiry.17 The facts that plaintiff alleged, if proved, would
	17
        We note that, rather than give plaintiff’s pleading the benefit of all reason-
able inferences in its foreseeability analysis, the dissent has failed to give appro-
priate weight to several relevant historical facts alleged in plaintiff’s pleading,
including the 2005 series of shootings in the Downtown Entertainment District,
90	                                                           Piazza v. Kellim

permit a determination that the location at which Delgado
was attacked—because it attracted party-going young peo-
ple at night—attracted violent assault in various forms. As
plaintiff alleged, the shooter was drawn to that location
precisely because he expected to find partying teens at that
location and time. To call the attack random, senseless, or
mass does not advance the analysis very far. The shooting
in this case was random in the sense that the shooter could
have picked other locations to find teen victims, but it was
no more random than attacks in the area that were the
product of gang-related violence, to the extent that gang vio-
lence involves members of one gang targeting another gang
at a location where that gang might be found.18 Reasonable
minds can and do differ as to whether, in light of the history
of violent assaults at the Zone and in the surrounding neigh-
borhood, the attack on Delgado was reasonably foreseeable.19
	       In a different argument, the dissent asserts that,
in concluding that plaintiff has sufficiently stated a claim
with respect to foreseeability, we have mistakenly failed

the “history of fights and assaults in the line outside” the Zone, and the more
general allegation that “shooting, stabbings, felonious assaults, drug violations,
and/or murders are commonplace” in underage nightclubs. See 360 Or at 103-05
(Balmer, C. J., dissenting). Moreover, contrary to the dissent’s apparent assump-
tion, id. at 105, and, giving, as we must, plaintiff’s pleading the requisite benefit
of all reasonable inferences, there is no indication that all those incidents involved
drug-, alcohol-, and/or gang-related violence, nor is there an indication that the
2002 shooting at the crowd outside the predecessor of the Zone was related to
gangs, drugs, or alcohol.
	18
        Here, the shooting was intentional—just like a gang- or drug-related
shooting would be—and it occurred in a high-crime area with a history and rep-
utation for violence. The risk of violent assault that those circumstances created
included an intentional shooting that may leave incidental, unintended victims.
Gang members and drug dealers do not always aim with precision. In that sense,
the type of shooting in this case is not too different from the “mass murder” sce-
nario that the dissent implies.
	19
         The Court of Appeals put the matter well when it stated:
     “Whether the circumstances of a particular assault—such as the shoot-
     er’s motive or mental state, the intended victim, or the weapon used—are
     ‘details,’ or instead serve to make the crime qualitatively different from other
     foreseeable harms, will vary from case to case. Based on the facts alleged
     in plaintiff’s complaint, a reasonable juror could conclude that this type of
     assault—a gunman firing at patrons waiting in line to enter [t]he Zone—fell
     within the category of risks that the Zone defendants should have antici-
     pated, regardless of the shooter’s particular motive, mental state, intended
     targets, or weapon used.”
Piazza, 271 Or App at 511-12.
Cite as 360 Or 58 (2016)	91

to distinguish between “the manner of harm” and the
“end result.” 360 Or at 108-13 (Balmer, C. J., dissenting).
According to the dissent, our characterization of the harm
risked as “violent assault,” is an “end result,” upon which
we focus to a fault, while “ignoring the manner in which
the harm occurred.” Id. at 108. In making that argument,
the dissent relies on several decisions of this court, but that
reliance is misplaced.20
	        Hefty v. Comprehensive Care Corporation, 307 Or
247, 766 P2d 1026 (1988), illustrates the type of “extreme
case” that is beyond the general rule of foreseeable harm.
In that case, K, a teenager, was voluntarily admitted to
the defendant’s Adolescent Care Unit for the treatment of
alcoholism. Id. at 250. Six days after she was admitted, she

	20
       The dissent also relies on cases from other jurisdictions. As the dis-
sent notes, 360 Or at 111-12 (Balmer, C. J., dissenting), the Seventh Circuit in
Shadday v. Omni Hotels Management Corp., 477 F3d 511, 517 (7th Cir 2007),
limited the defendant’s liability for criminal conduct in that case under District
of Columbia law to circumstances “when it has some reason to think such crime
likely.” Similarly, in Commonwealth v. Peterson, 286 Va 349, 749 SE2d 307 (2013),
relied on by the dissent, 360 Or at 102 n 2 (Balmer, C. J., dissenting), the court
followed the Virginia rule providing, unlike Oregon law, that
      “where the special relationship was that of business owner/invitee or landlord/
      tenant, we have imposed a duty to warn of third party criminal acts only
      where there was an imminent probability of injury from a third party crim-
      inal act.”
Peterson, 286 Va at 357, 749 SE2d at 312 (internal quotation marks and citation
omitted; emphasis added). Because this court has never required that an injury
be probable, let alone imminently probable, in order to satisfy the foreseeability
requirement, those authorities are simply inapplicable here. Moreover, although
it is unnecessary to pursue the matter in detail, as two commentators have noted,
there is much room to question the reasoning of Shadday, in particular:
      “The idea that a hotel owes no duty to its guests to take steps to protect them
      from other guests is quite untenable. Imagine that a hotel installed low-
      grade electronic locks that enabled guests easily to use their own room keys
      to open other guest’s rooms. If a guest were to take advantage of this inad-
      equate security system to break into the room of another guest and attack
      the other, the victim’s claim that the hotel failed in a basic responsibility to
      provide security would be quite compelling. This would be a failure to provide
      the security that a guest reasonably expects from a hotel and that a hotel
      implicitly promises to its guests. The duty Shadday was owed was a duty
      to take ordinary care against her being attacked on the premises. Parsing
      that risk into the risk of attack by intruders versus guests is arbitrary and
      unmotivated.”
John C. P. Goldberg & Benjamin C. Zipursky, Civil Recourse Defended: A Reply
to Posner Calabresi, Rustad, Chamallas, and Robinette, 88 Ind LJ 569, 588-89
(2013).
92	                                             Piazza v. Kellim

left the facility against the medical advice of the unit. Id.
Neither K nor the hospital notified her parents that she had
left. Id. While riding as a passenger on a friend’s motorcy-
cle, she sustained severe head injuries in an accident with
an automobile. Id. at 251. Neither drugs nor alcohol was a
factor in the collision. Id.
	        Importantly, the court stated:
    “The risk to be foreseen was not that [K] would ride on
    the back of a motorcycle and be injured in a collision with
    an automobile. * * * The risk to be foreseen was more
    general—it encompassed those generalized incidents and
    injuries created by discharging [K], an impaired minor
    addicted to alcohol, without notice to parents or police,
    without the permission of her doctor, without providing
    alternative care, and with the knowledge that [K] could
    not care for herself.”
Id. at 252 (citation omitted).
	        As pertinent here, Hefty stands for the proposition
that the risk of harm to be foreseen must be described more
generally than the dissent would describe it. Instead of
describing the risk of harm to be foreseen narrowly as the
risk that the daughter “would ride on a motorcycle and be
injured in a collision with an automobile,” the court carefully
tied the risk to be foreseen to the more general risk encom-
passed by the “generalized incidents and injuries created
by” the defendant’s unreasonable conduct. Id. Ultimately,
the court held that, because neither alcohol nor drugs had
been involved in the accident—that is, because the con-
nection between the defendant’s negligent conduct and the
harm that the plaintiff suffered was too attenuated—no
reasonable trier of fact could find that K’s injuries fell within
the scope of the foreseeable risk posed by the discharge. Id.
at 252-53.
	        The dissent also relies on Oregon Steel Mills. In
that case, there was no causal relationship between the
defendant’s conduct (negligently preparing an accounting
report) and the “force” that inflicted harm on the plaintiff
(a declining stock market); the stock market did not take
notice of the defendant’s negligence and use the opportunity
to decline. Oregon Steel Mills, 336 Or at 345. The two events
Cite as 360 Or 58 (2016)	93

occurred in a temporal relationship to each other that were
completely coincidental.
	         This court in Oregon Steel Mills took pains to
describe the problem for the plaintiff as lack of foreseeabil-
ity, not causation in fact. See id. at 344. However, the court
focused on the lack of a causal nexus between the defen-
dants’ conduct and the market forces that led to the price
decline that harmed the plaintiff, when it ultimately con-
cluded that “the intervening action of market forces on the
price of plaintiff’s stock was the ‘harm-producing force,’ and
defendant’s actions did not ‘cause’ the decline in the stock
price so as to support liability for that decline.” Id. at 345
(emphasis added). That is another way of saying, as in
Buchler, that the defendant’s conduct merely facilitated the
harm ultimately suffered by the plaintiff. See Buchler, 316
Or at 511-12 (“[M]ere ‘facilitation’ of an unintended adverse
result, where intervening intentional criminality of another
person is the harm-producing force, does not cause the harm
so as to support liability for it.”).
	         But, here, the relationship between defendants’
conduct and the harm inflicted on Delgado is qualitatively
different from the relationships in Hefty and Oregon Steel
Mills that this court deemed to be too attenuated.21 Here, in
contrast to the circumstances in those cases, as alleged in
plaintiff’s complaint, the assailant’s access to Delgado and
the other teens outside the Zone was directly connected to
the Zone defendants’ asserted negligence in failing to provide
adequate security against violent assault for patrons lined
up on the sidewalk. To the extent that the dissent’s “man-
ner of harm/end result” argument more narrowly describes
the pertinent risks of harm as “gang-, drug-, and alcohol-
related violence,” 360 Or at 108 (Balmer, C. J., dissenting),
it is bound up in the dissent’s conception of the appropriate
level of generality with which to describe the presenting risk
of harm, a conception that we do not share.
	       Finally, the dissent argues that we have not ade-
quately explained our conclusion that plaintiff’s complaint
	21
      As we later explained, Oregon Steel Mills “turned on the specific facts
before the court.” Bailey, 343 Or at 289-90.
94	                                                          Piazza v. Kellim

sufficiently alleged foreseeability. Although the dissent may
not be satisfied, the analysis cannot be reduced to the appli-
cation of Euclidean-like postulates. That is because, as pre-
viously explained, foreseeability in the pertinent sense ulti-
mately is a blended factual and normative inquiry. Because
reasonable foreseeability invokes a community’s application
of its own values, whether a particular outcome of conduct
is foreseeable is most appropriately decided by the commu-
nity’s closest proxy in our civil justice system, that is, by a
jury. Exceptions exist only for harm resulting from “the con-
catenation of highly unusual circumstances.” Stewart, 255
Or at 609. Fazzolari reiterated that standard: “[T]he issue
ordinarily can be left to the jury,” except for conduct “at the
outer margins.” 303 Or at 12.22 In an earlier case, Justice
O’Connell put it this way:
    “In any case where there might be reasonable difference of
    opinion as to the foreseeability of a particular risk, the rea-
    sonableness of the defendant’s conduct with respect to it,
    or the normal character of an intervening cause, the ques-
    tion is for the jury, subject of course to suitable instructions
    from the court as to the legal conclusion to be drawn as the
    issue is determined either way.”

Dewey, 233 Or at 536 (O’Connell, J., concurring) (quoting
William L. Prosser, Handbook of the Law of Torts 282 (2d
ed 1955)).
	       Precisely because it is driven by community values,
judges have no upper hand over juries in the inquiry, except
to act as gatekeepers at the outer margins.23 With that

	22
         The dissent misunderstands our reasoning in asserting that, “[i]n effect,
the majority concludes that an assailant’s methods and motivations are irrel-
evant to the foreseeability analysis.” 360 Or at 108 (Balmer, C. J., dissenting).
To the contrary, those factors are relevant to the analysis, but we do not share
the dissent’s view that they are so conclusive in this case as to preclude a jury
determination that the harm that befell Delgado was reasonably foreseeable to
defendants.
	23
         In a thoughtful discussion of the underpinnings of the allocation of respon-
sibility between judge and jury in foreseeability determinations, one commenta-
tor has stated:
     “The genius of the jury is that it brings to each case multiple perspectives,
     both shared and diverse experiences, and (with the exception of the occa-
     sional attorney-juror) a legal tabula rasa. To put it simply—especially
     when considering a question like foreseeability that is part-analysis,
Cite as 360 Or 58 (2016)	95

limited role in view, what we have here is not a suburban
mall in daylight hours or some other workaday public place
where people ordinarily go about their routines with only a
remote consciousness of the risk of a violent attack. Instead,
as alleged in plaintiff’s complaint, the scene of this shooting
was an inadequately secured sidewalk queue where teen-
agers were waiting to enter a nightclub, late in the evening,
in a high-crime urban neighborhood that, based on publi-
cized past experience, posed a risk of violent harm to persons
present. The harm that befell Delgado, although thankfully
uncommon, was within the range of risks of harms that a
reasonable factfinder could find was reasonably foreseeable
in the circumstances alleged in plaintiff’s complaint.
	       The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
	         BALMER, C. J.
	        A reader of the majority opinion would be forgiven
for thinking that the death of plaintiff’s decedent was the
tragic result of the kind of gang-, drug-, or alcohol-related
violence that plaintiff alleges to be common in the neighbor-
hood around the Zone nightclub. But that is not what hap-
pened here, and plaintiff does not allege otherwise. Instead,
decedent was shot during an attempted mass murder by a
violent schizophrenic assailant, Ayala, who opened fire sim-
ply because he was intent on killing teenagers. Plaintiff does
not allege that Ayala was a gang member, a drug dealer, or
a club-goer or had any other foreseeable connection to the
Zone or the Zone’s neighborhood.
	        The majority opinion, nevertheless, concludes that
plaintiff’s allegations of gang-, drug-, or alcohol-related vio-
lence could establish that the shooting incident in this case
was foreseeable because both the alleged neighborhood vio-
lence and the shooting at issue here are types of “violent

    part-community experience, and part-gestalt—perhaps twelve heads are
    better than one.”
W. Jonathan Cardi, Purging Foreseeability: The New Vision of Duty and Judicial
Power in the Proposed Restatement (Third) of Torts, 58 Vand L Rev 739, 800
(2005) (footnote omitted).
96	                                          Piazza v. Kellim

assaults.” 360 Or at 83. But the majority fails to explain why
that similarity matters. Contrary to the majority’s analy-
sis, it does not follow as a matter of law or as a matter of
logic that, simply because some types of violent assault are
foreseeable, therefore all types of violent assault are fore-
seeable. I would limit the types of foreseeable risks in this
case to those that plaintiff has alleged to be present at the
time and place of the shooting—namely, gang-, drug-, and
alcohol-related violence, which might include some shooting
incidents but would exclude the shooting incident in this
case. Defining the foreseeable risks any more broadly than
that, as the majority does, goes beyond the risks that the
complaint alleges. For those reasons, I dissent.
	        The principal issue on review is whether plaintiff
has alleged facts that would allow a reasonable jury to con-
clude that the shooting incident underlying this negligence
case was a type of foreseeable risk created by defendants’
conduct. According to plaintiff, the Zone nightclub had a
history of violence, because a shooting happened there in
2002—seven years before the shooting incident here—and
because underage nightclubs are inherently dangerous, due
to the high proportion of young male patrons, high noise lev-
els, crowding, and “competitive situations.” Further, plaintiff
alleges that “assaults” occur regularly in the area around the
Zone because of gangs, drug dealing, and over-consumption
of alcohol. Those facts, plaintiff alleges, were known, or
should have been known, to defendants. As a result, plain-
tiff contends that a risk of violent assault was foreseeable.
Plaintiff concludes, therefore, that the Rotary defendants
were negligent for leaving the group of teenagers, including
decedent, at the Zone, and that the Zone defendants were
negligent for asking patrons to form a line outside the club
and failing to provide more and better security.
	        Plaintiff’s allegations are unquestionably thin and
bear little relationship to the unprovoked shooting in this
case. That is particularly true with regard to the Rotary
defendants. Plaintiff alleges only that the Rotary defen-
dants “knew, or in the exercise of reasonable care, should
have known, about the dangers of leaving plaintiff’s dece-
dent in the Zone nightclub on the date and time in ques-
tion.” Although “the fact that the defendant was aware of a
Cite as 360 Or 58 (2016)	97

particular risk” is usually a factual allegation rather than
a legal conclusion, Moore v. Willis, 307 Or 254, 259, 767 P2d
62 (1988), it is not clear to me that plaintiff’s allegation of
“danger” is an allegation of a particular risk. And although
plaintiff alleges that “instances of violence that occurred
nationally at underage nightclubs and locally in the area
around the Zone nightclub were all publicized in local and/or
national media,” plaintiff does not allege that the Rotary
defendants were aware of those “local and/or national” news
reports, nor any reason why the Rotary defendants—or their
alleged agents, decedent’s host family in White Salmon,
Washington—should have been aware of those reports.
Reports of violence are commonplace. Local and national
media are so saturated with crime stories that an ordinary
person cannot be expected to take note of all violent acts
wherever they might travel and account for them in assess-
ing the risks of engaging in daily life. Foresight of that kind
would demand “a paranoid view of the universe,” and that
is not what the legal standard of foreseeability requires.
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 21, 734
P2d 1326 (1987).
	         Nevertheless, I do not believe that that issue needs
to be resolved because, even assuming that the Rotary
defendants had the same knowledge as the Zone defendants,
those allegations are insufficient to establish that the shoot-
ing incident underlying this case was foreseeable. We gener-
ally make that determination by comparing the harm that
a plaintiff suffered to the general types of risks foreseeably
created by a defendant’s conduct. Id. at 17 (describing the
standards of foreseeability). The trial court ruled that plain-
tiff’s allegations, even if true, could not establish that the
shooting incident was foreseeable and therefore dismissed
plaintiff’s second amended complaint under ORCP 21 A(8)
for failing to state ultimate facts supporting her negligence
claim against both the Zone defendants and the Rotary
defendants.
	        When reviewing a trial court’s ruling dismissing a
plaintiff’s complaint under ORCP 21 A(8), we assume, like
the trial court, that the facts alleged in the complaint are
true, and we draw all reasonable inferences in the plaintiff’s
favor. Bailey v. Lewis Farm, Inc., 343 Or 276, 278, 171 P3d
98	                                           Piazza v. Kellim

336 (2007). The majority agrees that, when assessing the
sufficiency of a plaintiff’s allegations to state a claim, it is
the court’s role to “ ‘determine whether upon the facts alleged
* * * no reasonable factfinder could decide one or more ele-
ments of liability.’ ” Chapman v. Mayfield, 358 Or 196, 205,
361 P3d 566 (2015) (quoting Fazzolari, 303 Or at 17).
	         Foreseeability is central to establishing the elements
of a negligence claim. A defendant may be subject to liability
for negligence only if the defendant’s conduct “unreasonably
created a foreseeable risk * * * of the kind of harm that befell
the plaintiff.” Fazzolari, 303 Or at 17. Therefore, a plain-
tiff fails to state a negligence claim if the plaintiff fails to
allege facts that would allow a reasonable jury to find that
the plaintiff was harmed by a foreseeable risk created by
the defendant’s unreasonable conduct. Solberg v. Johnson,
306 Or 484, 490-91, 760 P2d 867 (1988) (stating that the
elements of a negligence claim include “that defendant’s con-
duct caused a foreseeable risk of harm, * * * that defendant’s
conduct was unreasonable in light of the risk, [and] * * * that
plaintiff was within the class of persons and plaintiff’s injury
was within the general type of potential incidents and inju-
ries that made defendant’s conduct negligent”).
	        As a result, defining the scope of foreseeable risks
has important implications for tort law generally and par-
ticularly when liability will be imposed for negligent con-
duct. A risk is foreseeable if a reasonable person would
have “reasonably expected the injury to occur.” Stewart v.
Jefferson Plywood Co., 255 Or 603, 609, 469 P2d 783 (1970).
If the scope of foreseeable risks is described more broadly,
then that necessarily means that an actor should expect his
or her conduct to lead to more or greater harms. A more
broadly defined risk makes it easier to establish both that a
defendant’s conduct is unreasonable (because the probability
and severity of foreseeable harms are factors in determin-
ing reasonableness) and that a plaintiff’s harm falls within
the risks created by the defendant’s unreasonable conduct
(because the risk encompasses more harms). The opposite is
true when the foreseeable risks are defined narrowly.
	      Although foreseeability is a component of both the
reasonableness determination and the harm-within-the-risk
Cite as 360 Or 58 (2016)	99

determination, defendants do not challenge the sufficiency
of plaintiff’s allegations to establish that defendants’ con-
duct was unreasonable. Thus, for the sake of reviewing the
trial court’s dismissal order, we assume that the Rotary
defendants should not have taken the teenagers to the Zone.
And we assume that the Zone defendants should not have
required patrons to form a line and should have provided
more and better security.
	        Instead of challenging the reasonable-conduct ele-
ment of plaintiff’s negligence claims, defendants challenge
plaintiff’s pleading of the element requiring that decedent’s
harm was within the foreseeable risks created or increased
by defendants’ conduct. See, e.g., Chapman, 358 Or at 206
(considering “whether plaintiffs’ injuries were within the
type of potential harms that made defendant’s conduct
unreasonable”; affirming summary judgment for defen-
dant); Bailey, 343 Or at 281 (reversing dismissal where
“[t]he type of harm that plaintiff suffered fell squarely
within the scope of the risk that defendant’s negligence cre-
ated”).1 That element identifies the legal limit of liability for
negligently caused harms—that is, the point at which we
will not hold a defendant liable for harms, even if the defen-
dant acted unreasonably and even if the defendant’s conduct
was a but-for (or substantial-factor) cause of the injury. See,
e.g., Stewart, 255 Or at 607 (noting defendant’s negligence
and causation but attempting to “draw[ ] the line at which
the defendant’s liability ends”).
	      As it relates to that element, overly broad and overly
narrow categories of risk distort the limits of liability:
    “It has been observed that ‘if we use a very generalized
    description of the type of harm that was foreseeable and of
    the type of harm that occurred, an answer that the result
    was within the risk is inevitable.’ And on the other hand,
    ‘(i)f we use a detailed, mechanism-of-harm description of
    the result and the risks, the answer will be negative.’ ”

	1
       See Restatement (Third) of Torts: Phys. & Emot. Harm § 29 (2010) (“An actor
is not liable for harm different from the harms whose risks made the actor’s con-
duct tortious.”); id. § 30 (“An actor is not liable for harm when the tortious aspect
of the actor’s conduct was of a type that does not generally increase the risk of
that harm.”).
100	                                           Piazza v. Kellim

Id. at 610 (quoting Robert E. Keeton, Legal Cause in the Law
of Torts, 51 (1963)) (footnotes omitted); see also Chapman,
358 Or at 208 (same) (citing Stewart, 255 Or at 610). Risks
should not be defined so narrowly as to require the defendant
to foresee the precise sequence of events, as they unfolded,
that lead to the particular plaintiff’s particular injury. See
Fazzolari, 303 Or at 21 (so stating). Instead, we focus on gen-
eralized risks of harm. Id. at 13 (citing Stewart, 255 Or at
610-11). My disagreement with the majority, therefore, is not
whether courts should use “generalized” descriptions of risk;
our cases correctly require us to do so. My disagreement,
rather, is over how broadly to define the generalized risks
that we use in this case. As Stewart itself recognized, a gen-
eralized risk of harm may be defined in terms that are too
general. Stewart, 255 Or at 610. Because liability is intended
to track community standards for blameworthiness, risks
must be characterized with sufficient particularity to dis-
tinguish between conduct that is blameworthy and conduct
that is not. Id. at 608-09 (so stating). Risks that are defined
too broadly—where a finding of foreseeability is “inevitable,”
id. at 610 (internal quotation marks and citation omitted)—
cannot serve as a meaningful limit on the scope of liability.
See Fazzolari, 303 Or at 21 (so stating).
	        There is no single standard for determining the
appropriate level of generality for defining risks. Last
year, in Chapman, this court emphasized the importance
of appropriately identifying how generally to define risks.
358 Or at 208. To do so, “this court’s practice in cases that
address foreseeability as a limit on liability” has been to
“[d]raw[ ] on the plaintiff’s theory of liability” and to “view[ ]
the defendant’s conduct through the lens of the particular
factual circumstances of the case—with emphasis on what
the defendant knew or should have known about the risk of
harm.” Id.
	        For example, in Stewart, the court addressed the
appropriate level of generality for defining the foreseeable
risks created by negligent welding operations. In that case,
there was no question that the defendant’s unreasonable con-
duct started a fire that spread to a neighboring warehouse.
Stewart, 255 Or at 605. While attempting to prevent further
fire damage on the roof of that warehouse, the plaintiff fell
Cite as 360 Or 58 (2016)	101

through a covered skylight, hit the floor, and suffered vari-
ous injuries. Id. Thus, there was also no question that defen-
dant’s conduct was a factual cause of the plaintiff’s injury.
But the court noted that establishing that the defendant’s
unreasonable conduct caused the plaintiff’s injury is not suf-
ficient to establish liability, because a defendant is not liable
for all injuries caused by his or her unreasonable conduct.
Id. at 606. Instead, a defendant is subject to liability only for
injuries that can be “anticipated.” Id. at 609.
	        The court concluded that the plaintiff’s injury could
be anticipated because a reasonable person would know that
firefighters “might be injured as a result of a variety of possi-
ble circumstances—by being burned, by falling off a ladder,
by falling off a roof, by falling through a burned portion of
the roof, or by other similar risks normally associated with
fighting fires.” Id. at 610. Although falling through a covered
skylight might not immediately come to mind as a potential
harm, it was foreseeable because it was within the types of
risks that a reasonable person would reasonably expect a
firefighter to encounter. Id.
	         The plaintiff’s theory and supporting evidence were
related to firefighting, so the risk of harm was defined in
reference to firefighting. Based on that theory and that evi-
dence, it would have been inappropriate, for example, to
define the risk as being “falling through covered skylights.”
That risk would have been too narrow because it would
have required the plaintiff to establish that defendant had
specific knowledge that the skylight was covered. That risk
would have also been too broad because it would encompass
risks outside the plaintiff’s theory of liability and the evi-
dence offered. Hypothetically, bystanders might have gone
to the roof of a warehouse upwind from the fire simply to
watch the activity. If a bystander on that warehouse fell
through a covered skylight, the defendant’s negligent con-
duct still might have been a factual cause of the resulting
injuries. But the foreseeability of that injury could not have
been established through evidence of the risks encountered
by firefighters.
	       In this case, plaintiff attempts to establish that
the shooting incident was foreseeable based on defendants’
102	                                                       Piazza v. Kellim

knowledge of prior criminal acts at or around the Zone.
As noted above, we assume that defendants’ conduct was
unreasonable, and, therefore, we assume that they had
knowledge of prior criminal acts at or around the Zone that
would cause them to be aware of some continuing risk of
further criminal acts. The question is whether the shooting
incident in this case was among the criminal acts that a rea-
sonable person would foresee based on those prior criminal
acts allegedly known to defendants.
	        Answering that question requires comparing those
prior criminal acts to the shooting incident in this case.
The majority identifies a number of factors relevant to that
comparison—namely, the degree of similarity, frequency,
recency, and geographic proximity between the plaintiff’s
harm and the prior criminal acts alleged by the plaintiff.
360 Or at 81. And, as the majority notes, similarity may be
based on the nature of the criminal act itself, or it may be
based on other considerations, such as the circumstances of
the offense or the specific types of victims.
	        Thus, a generalized risk does not need to be defined
so broadly as to capture all of the prior criminal acts that a
plaintiff has alleged. Instead, the risk is based only on those
prior criminal acts that indicate a continuing risk of injury
at the time and place of a defendant’s allegedly negligent
conduct and a plaintiff’s resulting harm. In other words,
the foreseeability of a plaintiff’s injury cannot be based on
prior criminal acts that are too dissimilar, are too remote
in time or place, or otherwise fail to indicate a continuing
risk at the relevant time and place.2 Prior criminal acts that
are dissimilar to the criminal act that caused the plaintiff’s
injury might have signaled a continuing risk of some other
type of harm, but not the risk of harm that the plaintiff suf-
fered. And prior criminal acts that are too remote in time
	2
       In certain circumstances, prior criminal acts may no longer indicate a con-
tinuing risk, even if the prior criminal acts are close in time and place to the
plaintiff’s injury. In Commonwealth v. Peterson, 286 Va 349, 749 SE2d 307 (2013),
for example, the Virginia Supreme Court held that knowledge that two university
students were shot and killed on campus did not establish the foreseeability of
a mass shooting by the same assailant hours later, which lead to the deaths of
32 people. At the time the mass shooting began, defendants reasonably believed
that the earlier shooting was a domestic incident and that “the shooter had fled
the area and posed no danger to others.” Id. at 359.
Cite as 360 Or 58 (2016)	103

and place might have signaled a continuing risk of harm at
some other time or some other place, but not at the time and
place of the plaintiff’s injury. What counts as dissimilar or
too remote will depend on the plaintiff’s theory of liability
and factual allegations.
	        For example, in Fazzolari, a female student was
sexually assaulted on school grounds. 303 Or at 3. In assess-
ing the foreseeability of the sexual assault, the court noted
that there was evidence of a prior sexual assault on another
female at the same school only 15 days earlier. Id. at 21.
Although the court in Fazzolari did not expressly apply the
factors that the majority now identifies, that single prior
criminal act established recency, geographic proximity, and
similarity of the criminal act sufficient to allow the issue
to go to the jury. In considering evidence of “various other
kinds of attacks,” the court noted that “evidence of foresee-
ability will differ depending on whether the risk of injury is
claimed to be specific to a school, or schools generally, or a
neighborhood, or a class of potential victims such as women
or particular ethnic groups.” Id.
	        Similarly, we start by assessing decedent’s injury
in this case and then compare it to the prior criminal acts
allegedly known by defendants. According to plaintiff,
the shooting incident in this case occurred when Ayala
approached a group of teenagers waiting in line at night out-
side the Zone and opened fire with a semiautomatic handgun
with the intent to kill them. As pleaded, Ayala was a para-
noid schizophrenic who was motivated to commit the shoot-
ing by an irrational and hostile fixation with teenagers.3
	       The prior criminal acts alleged by plaintiff to be
known by defendants relate to the Zone itself and to the neigh-
borhood around the Zone. As it relates to the Zone, plaintiff
alleges that underage nightclubs are inherently danger-
ous because many patrons are young males in “competitive
	3
       Defendants ask this court to take judicial notice of the fact that Ayala shot
a total of nine people, killing two—decedent and one other victim—and that
Ayala then fatally shot himself at the scene. It would have been more appropri-
ate for defendants to raise that issue in the first instance with the trial court.
Regardless, that issue is beyond the scope of this case because, for the reasons
described in the text, this court should affirm the trial court’s dismissal order
even if we do not take judicial notice of the facts that defendants offered.
104	                                         Piazza v. Kellim

situations” and clubs are often noisy and crowded. But prior
incidents of teenage fights are plainly insufficient to cre-
ate a reasonable expectation of an unprovoked shooting.
Further, plaintiff relies on a shooting in 2002 that injured
three people outside the location later occupied by the Zone.
Although that shooting is a similar criminal act in some
ways, it happened seven years before the shooting in this
case—nothing like the 15 days that separated the crimes in
Fazzolari. Because of that lack of recency, we cannot simply
assume that the causes of the 2002 shooting persisted and
continued to pose a risk of another shooting there in 2009.
And plaintiff alleges no additional facts that could establish
that the 2002 shooting created a reasonable expectation of a
shooting seven years later.
	         As it relates to the area around the Zone, plain-
tiff alleges that violent assaults occur regularly because of
gangs, drug dealing, and over-consumption of alcohol. To
substantiate that, plaintiff provides crime statistics from an
expansively drawn area, covering the entire Downtown and
Old Town/Chinatown neighborhoods. Plaintiff, however,
makes no allegations addressing the extent to which those
crimes actually happened near the Zone, affected Zone
patrons, or otherwise resembled the unprovoked shooting in
this case. In other words, in an attempt to establish recency
and frequency, plaintiff has stretched the bounds of similar-
ity and geographic proximity.
	        Nevertheless, the majority insists that a reasonable
jury would be allowed to conclude that defendants should
have foreseen a risk of “violent assault.” 360 Or at 83. The
majority does not further limit its characterization of that
foreseeable risk, which, therefore, covers all types of violent
assault. But the expansiveness of that risk proves that it
is untenably broad. A risk of “violent assault” would cover
nearly all types of violence, including the shooting incident
in this case, but also including sexual assaults, armed rob-
beries, bombings, and even acts of terrorism—each of which
is a type of violence that would not have been foreseeable
based on plaintiff’s allegations. If plaintiff had pleaded that
the shooting incident occurred in a war zone, then we might
expect a reasonable person to anticipate the wide range of
harms that fall within the category of “violent assaults.”
Cite as 360 Or 58 (2016)	105

But plaintiff’s allegations are far more limited than that.
Consequently, the foreseeable risk that may be established
by plaintiff’s allegations requires some limitation.
	         That limitation separates the types of violence
that could have been reasonably expected from the types
of violence that could not have been reasonably expected.
As explained above, many of plaintiff’s allegations are too
remote to indicate a continuing risk at the time and place
of the shooting.4 Focusing only on plaintiff’s allegations that
indicated a continuing risk of injury at the time and place of
the shooting, plaintiff’s allegations could support, at most, a
conclusion that defendants should have foreseen some types
of violent assaults—namely, those types of violent assaults
that plaintiff alleged to be common in the neighborhood at
the time of the shooting: gang-, drug-, and alcohol-related
violence. Plaintiff’s allegations of prior gang-, drug-, and
alcohol-related crimes indicated a foreseeable risk of harm
at the time of the shooting because, as alleged by plaintiff,
gang-, drug-, and alcohol-related activity continued to per-
sist in the area around the Zone at that time.
	         The foreseeable risk in this case is defined by the
type of criminal—i.e., whether the criminals whose activi-
ties posed the allegedly foreseeable risks of harm are con-
nected to gang-, drug-, or alcohol-related activities—rather
than the type of crime, because plaintiff’s allegations pro-
vide no other grounds for defining the risk. There will likely
be many cases where the type of criminal will carry less
weight in the foreseeability analysis, such as cases where
the prior criminal conduct is more similar, recent, frequent,
and geographically proximate than those alleged by plain-
tiff. In those cases, it may be reasonable to infer that the
cause of the prior crimes persisted at the time and place of
the later crime. But, given the lack of similarity, recency, fre-
quency, and geographic proximity, that inference is not rea-
sonable based on plaintiff’s factual allegations. See Delgado
v. Souders, 334 Or 122, 135, 46 P3d 729 (2002) (whether an
inference is reasonable is a question of law). Further, plain-
tiff makes no allegation that the Zone specifically attracted

	4
       The majority appropriately declines to give weight to all of plaintiff’s alle-
gations. 360 Or at 82; id. at 82 n 13.
106	                                         Piazza v. Kellim

people wanting to commit unprovoked shootings or people
directing violence at teenage victims. Although the majority
notes that Ayala targeted the Zone because he sought out
teenage victims, 360 Or at 82, 89-90, plaintiff does not allege
that Ayala’s intention to shoot teenage victims was known
to defendants prior to the shooting incident and, therefore,
cannot provide grounds for establishing foreseeability.
	         Once the risk posed by the alleged prior criminal
acts is properly defined as gang-, drug-, and alcohol-related
violence, it is apparent that decedent’s harm was not within
the foreseeable risk: Plaintiff makes no allegation that
Ayala was involved in gang-, drug-, or alcohol-related activ-
ities or had any connection to gang members, drug dealers,
or club-goers in the neighborhood. Further, eliminating
the risk of gang-, drug-, and alcohol-related activity in the
area around the Zone would have had no effect on the like-
lihood of the shooting incident in this case, plainly estab-
lishing that the risks are distinct. To be sure, gang-, drug-,
and alcohol-related violence are themselves broadly defined
and generalized risks of harm. But to define the foreseeable
risks more broadly than that would improperly divorce the
risk of harm from plaintiff’s theory of liability and from the
factual circumstances alleged by plaintiff to be known to
defendants.
	        In reaching its conclusion that all violent assaults
in the geographic area that plaintiff identified were foresee-
able, the majority fails to consider the similarity, recency,
frequency, and geographic proximity of the prior criminal
acts. Instead, the majority’s analysis appears to first go off
track by reading more into our prior cases than those cases
can support. According to the majority, “This court’s pre-
vious decisions generally prescribe a relatively broad level
of generality in assessing the reasonable foreseeability of
criminal conduct as a limit on liability.” 360 Or at 83 (citing
Fazzolari, 303 Or at 21).
	        The problem is that, as noted above, when this
court most recently addressed the process for defining the
foreseeable risks, that process did not “prescribe a rela-
tively broad level of generality,” as the majority now asserts.
360 Or at 83. Instead, after reviewing the same case law
Cite as 360 Or 58 (2016)	107

that the majority reviews in this case, we concluded that
the process for appropriately identifying how generally to
define the risks requires critically assessing the connection
between plaintiff’s theory of liability and the facts alleged to
be within defendants’ knowledge. Chapman, 358 Or at 208.
As a result, our prior cases in fact do not exhibit a prefer-
ence for either a broad or narrow level of generality. Rather,
the appropriate level of generality turns on plaintiff’s the-
ory of liability and the facts alleged to be within defendants’
knowledge. Whether a different theory of liability and dif-
ferent facts alleged in a different case supported a broad
level of generality is immaterial.
	         In any event, I do not share the majority’s read-
ing of Fazzolari as prescribing that all types of assaults be
treated as one category of foreseeable risks. That decision
never defines an appropriate level of generality. Although
Fazzolari states that “a school’s responsibility for students’
safety against assault is not limited to the risk of rape,”
303 Or at 21, that statement goes to assessing the reason-
ableness of the school’s precautions. The more foreseeable
assaults that might be prevented through a particular
safety precaution, the more likely that it was unreasonable
for the school not to take that precaution. As the court noted
earlier in its opinion in Fazzolari, “[I]t is important that all
foreseeable risks of harm to other classes of persons be con-
sidered in evaluating the reasonableness or unreasonable-
ness of defendant’s conduct.” Id. at 14. But simply because
all foreseeable assaults should be considered when determin-
ing whether conduct is reasonable does not mean that all
assaults are foreseeable.
	       The majority attempts to justify the broad level
of generality by explaining that location-based risks are
uniquely suited to broadly defined foreseeable risks. The
majority insists that it is appropriate to use a broad level of
generality
   “where, as here, the risk of harm at a particular location
   is at issue. See, e.g., Uihlein, 282 Or at 641 (‘[T]here must
   be something to alert the storekeeper to the likelihood of
   harm of some kind from a criminal agency.’). That only
   makes sense. When a business owner is on notice that—in
108	                                             Piazza v. Kellim

   the absence of reasonable precautions—assaultive conduct
   can be anticipated where people are waiting in line to enter
   its premises, it rings hollow to suggest that a specific crime
   pattern triggers the owner’s duty to protect patrons only
   with regard to those specific crimes (such as gang-related
   homicide) that have occurred.”
360 Or at 83. But there is no question that a business owner
must take reasonable precautions to protect invitees from
assaultive conduct reasonably expected to occur. The ques-
tion is whether the harm that decedent suffered was among
those types of assaultive conduct that defendants should
have reasonably expected to occur.
	        In answering that question, the majority refuses to
distinguish between criminal conduct based on the charac-
teristics of the shooter:
   “To the extent that [defendants’] challenge focuses on the
   precise sequence of events that occurred in this case, defen-
   dants invite a taxing level of comparison that this court
   consistently has rejected. As noted, contrary to defendant’s
   focus, foreseeability has reference to ‘the generalized risk
   of the types of incidents and injuries that occurred rather
   than the predictability of the actual sequence of events.’
   See Fazzolari, 303 Or at 13 (discussing Stewart).”
360 Or at 81-82. In effect, the majority concludes that an
assailant’s methods and motivations are irrelevant to the
foreseeability analysis. But, as described above, plaintiff’s
allegations make them relevant here because only gang-,
drug-, and alcohol-related crimes could have given rise to a
reasonable expectation of injury at the time and place of the
shooting.
	         From the majority’s perspective, that does not matter
because gang-, drug-, and alcohol-related violence entailed a
risk of a violent assault and a violent assault happened. But,
although we do not require plaintiffs to allege or adduce
facts establishing that the precise sequence of events was
foreseeable, we also do not focus only on the end result—e.g.,
a violent assault—while ignoring the manner in which the
harm occurred. A foreseeable risk cannot be defined without
connecting the end result to the reasons that the risk was
foreseeable in the first place. Therefore, “identical injuries,
Cite as 360 Or 58 (2016)	109

if they occur in different ways or at different times, may be
treated differently.” Restatement (Third) of Torts: Phys. &
Emot. Harm § 29 comment d (2010).5
	        That principle is well-established in our case law.
For example, in Hefty v. Comprehensive Care Corporation,
307 Or 247, 766 P2d 1026 (1988), the plaintiffs were a minor
who had been a patient at the defendant’s alcohol treatment
center as well as her parents. Id. at 250. The defendant pre-
maturely discharged the minor, who was still suffering from
alcoholism, without notifying her parents or doctor or other-
wise providing alternative arrangements for her care. Id.
The day after the discharge, the minor was involved, as a
passenger, in a traffic accident that did not involve drugs or
alcohol. Id. at 251.
	         Plaintiffs sued the defendant for negligently dis-
charging the minor. The court resolved the case on foresee-
ability, asking whether the plaintiff’s “injuries fell within
the scope of the ‘generalized risk of the types of incidents
and injuries’ created when defendant discharged [the plain-
tiff].” Id. The court appropriately identified two generalized
types of foreseeable risks created by the defendant’s con-
duct: (1) that the minor would “resume abusing alcohol and
drugs”; and (2) that the minor “would engage in activities
consistent with her impaired judgment and inability to con-
trol her behavior.” Id. at 252.
	        Notably, the court did not define the risk by the end
result—a traffic accident—even though it was at least plau-
sible that either of those risks could lead to a traffic acci-
dent. If, for example, the minor had been driving and was
under the influence of alcohol, then the accident might have
	5
      In Legal Cause in the Law of Torts, which this court relied on in Stewart,
255 Or at 610, Keeton expressly warned against ignoring the manner in which
the harm occurred:
    “[E]xtreme freakishness of the sequence of events that produces a final state
    of affairs that might have been expected to come about in some other way
    commends itself as a relevant consideration and stands against a practice
    of description of the harm in a way that wholly disregards the mechanism of
    injury. The choice of description involves a degree of orientation toward type
    of harm on the one hand or toward mechanism of harm on the other hand,
    with neither point of view wholly rejected.”
Legal Cause in the Law of Torts at 52.
110	                                                        Piazza v. Kellim

fallen within the scope of the risk that she would resume
abusing alcohol. But the fact that defendant’s conduct cre-
ated a risk that could lead to a traffic accident and the fact
that a traffic accident occurred was insufficient, because the
traffic accident that was risked was a different type of traf-
fic accident than the one that occurred. The issue was not
whether the defendant’s unreasonable conduct contributed
to the traffic accident—that would merely establish factual
causation. The issue was whether the reasons that made
the defendant’s conduct unreasonable were related to the
traffic accident that occurred. The court denied liability as
a matter of law because the plaintiffs adduced no evidence
establishing that the minor’s substance abuse or impaired
judgment were related to the traffic accident. The court
held, “ ‘In an extreme case a court can decide that no rea-
sonable factfinder could find the risk foreseeable.’ This is an
‘extreme case.’ ” Id. at 253 (quoting Donaca v. Curry Co., 303
Or 30, 38, 734 P2d 1339 (1987)).
	         Similarly, in Oregon Steel Mills, Inc. v. Coopers &
Lybrand, LLP, 336 Or 329, 83 P3d 322 (2004), we considered
the liability of an accountant who negligently misstated a
steel company’s earnings, delaying the company’s stock
offering, through which the company intended to raise capi-
tal. Id. at 333. By the time the company’s stock was offered,
the market for steel company stocks had declined. As a
result, the company’s stock sold for less than it would have if
it had not been delayed by the accountant’s negligence, and
the company was unable to raise as much capital as it would
have otherwise. Id.
	         As in Hefty, the issue in Oregon Steel Mills was not
factual causation; instead, the issue was foreseeability. Id.
at 344 (“There is sufficient evidence of factual causation
* * *. Rather, the critical issue is whether plaintiff’s market
losses were a reasonably foreseeable result of defendant’s
wrongful conduct.”).6 Again, the court did not define the
risk as the end result—stock-price reduction and resulting

	6
        See, e.g., Solberg, 306 Or at 490 (distinguishing between whether “defen-
dant’s conduct caused a foreseeable risk of harm,” which is an issue of foreseeabil-
ity, and whether “the conduct was a cause of plaintiff’s harm,” which is an issue
of factual causation).
Cite as 360 Or 58 (2016)	111

decrease in the capital raised—even though an accountant’s
negligence entailed such a risk. For example, negligently
misstating earnings might understate a company’s prior
earnings, making the company’s stock less desirable and
impairing the ability to raise capital. Then, there would be
a connection between the accountant’s negligence and the
stock-price reduction that impaired the company’s ability to
raise capital.
	        But the fact that the accountant created a risk of
a lower stock price and the fact that a lower stock price
occurred was not sufficient, because the stock-price reduction
that was risked was a different type of stock-price reduction
than the one that occurred. Instead, liability required estab-
lishing that the lower stock price occurred in the manner
that was reasonably anticipated. This court denied liability
as a matter of law because the company’s stock price was
not lowered by the accountant’s negligence; it was lowered
by market fluctuations that affected the entire steel indus-
try and had nothing to do with the accountant’s negligence.
Id. (“[P]laintiff seeks damages based solely on a decline in
the price of plaintiff’s stock during the delay that defendant
caused in getting the offering to market, yet plaintiff admits
that the price decline affected all steel stocks and was unre-
lated to defendant’s misconduct.”).7
	        Other courts have likewise distinguished between
the manner of the harm and the end result under facts
similar to this case. For example, Shadday v. Omni Hotels
Mgmt. Corp., 477 F3d 511 (7th Cir 2007), involved a negli-
gence claim against a hotel for failing to prevent the sexual
assault of the plaintiff, who was a hotel guest. Id. at 511. The
sexual assault was committed by another hotel guest. Id. In
	7
       The majority attempts to distinguish Hefty and Oregon Steel Mills by assert-
ing that, “in contrast to the circumstances in those cases, as alleged in plaintiff’s
complaint, the assailant’s access to Delgado and the other teens outside the Zone
was directly connected to the Zone defendants’ asserted negligence[.]” 360 Or
at 93. But foreseeability does not turn on whether the connection between the
defendant’s conduct and the plaintiff’s injury is direct rather than indirect—both
of which may establish liability. Instead, foreseeability turns on whether the con-
nection should have been reasonably expected. Stewart, 255 Or at 609. In any
event, it is unclear why the connection is more direct in this case than in Hefty
and Oregon Steel Mills. In all three cases, the harm-inducing force is extrinsic to
the defendant’s conduct.
112	                                            Piazza v. Kellim

denying liability as a matter of law, Judge Posner explained
that, based on the evidence adduced, the risk of crime was
from intruders and not from hotel staff or guests. Id. at 516.
Although “the precautions against guest-on-guest crime
are not dramatically different from the precautions against
intruder crime” such that the hotel’s failure to take those
precautions might have been a but-for cause of the guest’s
injury, that fact did not establish liability. Id. at 517. Instead,
regardless of the risk of sexual assault presented by intrud-
ers, “[t]he hotel becomes liable for guest-on-guest crime only
when it has some reason to think such crime likely,” and the
plaintiff presented no such evidence in that case. Id.
	        It may be worth asking why the manner of harm
matters when a defendant’s conduct is unreasonable and the
end result is the same, regardless of the manner in which it
occurs. Judge Posner addressed that question in Shadday:
“[T]he puzzle of the line of cases that [require the harm to
be within the foreseeable risk] is why the defendant, hav-
ing been negligent, should get off scot-free just because the
harm that would have been averted had he been careful was
not foreseeable.” Id. at 518. He notes that, without requiring
the harm to be within the risk, “negligence liability is poten-
tially too encompassing.” Id.
	        Our case law reflects those concerns as well.
Liability is intended to turn on fault, and fault is predicated
on blameworthiness. Stewart, 255 Or at 608. “[T]he com-
munity deems a person to be at fault only when the injury
caused by him is one which could have been anticipated
because there was a reasonable likelihood that it could hap-
pen.” Id. at 609. Defining the risk of harm in this case by the
end result—all violent assaults—would allow defendants to
be subject to liability for those violent assaults that could
be reasonably anticipated (gang-, drug-, and alcohol-related
violence) but also allows defendants to be subject to liability
for those violent assaults that could not have been reason-
ably anticipated (such as the shooting incident in this case).
	       Focusing on the end result, while ignoring the man-
ner in which that end result was reached, is like crediting a
broken clock because it happens to be right twice a day. The
correctness of a broken clock turns on the coincidence that it
Cite as 360 Or 58 (2016)	113

was viewed at the same time of day that it previously stopped
working. But in that case, whether the clock is correct has
nothing to do with whether the clock is functioning properly.
Likewise, whether the end result was foreseeable has noth-
ing to do with a defendant’s blameworthiness unless the end
result occurred in a foreseeable manner. Focusing only on
the end result allows liability to turn on coincidence rather
than blameworthiness.
	        Finally, the majority opinion emphasizes the notion
that questions of foreseeability should be decided by the
jury. 360 Or at 86, 94. Although it is true that foreseeability
is a fact issue, simply identifying an issue as factual does
not entitle a party to a jury trial or even to proceed to sum-
mary judgment. Rather, it depends on the relevant facts
alleged in the complaint or established by the summary
judgment record. Only when those facts are reasonably dis-
puted does the issue go to the jury. The jury’s role, of course,
properly can be an expansive one, particularly in deciding
fact-intensive issues like foreseeability. But even as to fore-
seeability, the court retains its role as gatekeeper, allowing
cases to proceed to the jury only if reasonable minds could
reach different conclusions on whether the facts alleged or
adduced could prove a plaintiff’s case. Stewart, 255 Or at
607.8
	        The majority defines the foreseeable risk in this
case broadly as “violent assaults” and leaves it to the jury to
decide whether the foreseeable risk should be defined more
narrowly. But the majority fails to explain how a reason-
able jury could define the risk that broadly, based on the
narrow facts alleged. How broadly or narrowly a reasonable
jury may define the generalized risks foreseeably created by
defendants’ conduct is a question of law appropriately and
necessarily resolved by the courts. See Fazzolari, 303 Or at
17 (defining the role of courts).
	       Negligence liability is intended to reflect commu-
nity standards of fairness and proportionality. Our system

	8
      In Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993), this
court rejected a common misreading of Fazzolari as standing for the proposition
that “all negligence claims based on general foreseeability of a plaintiff’s harm
would reach the jury.” Id. at 511 n 8.
114	                                           Piazza v. Kellim

operates on the “assumption that judges as well as juries
know something about the kind of conduct that is deemed
acceptable or not acceptable in the community and that, at
least at the higher and lower ends of the continuum of that
standard, the court can say that the conduct does or does
not meet the standard.” Stewart, 255 Or at 607-08. When
liability is clearly inappropriate, as it is in this case, “we are
charged with the duty of withdrawing the issue from the
jury.” Id. at 609. Although allowing too few cases to proceed
to trial intrudes on the role of the jury, allowing too many
cases to proceed to trial abdicates the role of the courts.
Consequently, I would affirm the trial court’s dismissal and,
therefore, dissent.
	        Landau, J., joins in this dissenting opinion.
