Bailey v. Lewis Farm, Inc.

This is a difficult and provocative case. Nothing touching on Fazzolari is easy, see, e.g., Bertram v. Malheur County, 204 Or App 129, 129 P3d 222 (2006), and the concurring judges have striven admirably. Nevertheless, the concurrence’s analysis, especially with respect to “intervening” causation, cannot be squared with Fazzolari, with implications far transcending the present dispute. Accordingly, I respectfully dissent.

My concerns are both legal and practical. As a legal matter, as I understand the concurring opinion’s core holding, the mere transfer of ownership and exercise of control…