722 April 10, 2024 No. 213

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Jerry C. STONE, 

Personal Representative for the Estate of 

Marika Jeanne Stone, an Oregon Resident,

Plaintiff-Appellant,

v.

Shante Lynn WITT et al.,

Defendants,

and

Nancy L. BRENNAN, DO; 

St. Charles Health Systems, Inc., 

dba St. Charles Family Care, an Oregon corporation; 

High Desert Personal Medicine, LLC, 

an Oregon limited liability company; 

Kevin Rueter, MD; MosaicMedical, 

an Oregon Corporation; and Walgreen Co., 

a Foreign Corporation,

Defendants-Respondents.

Deschutes County Circuit Court

18CV14401; A176439

Jack L. Landau, Senior Judge.

Argued and submitted May 22, 2023.

Kathryn H. Clarke argued the cause and filed the briefs 

for appellant.

Hillary A. Taylor argued the cause and filed the brief 

for respondents St. Charles Health Systems, Inc., dba St. 

Charles Family Care and Nancy L. Brennan, D.O.

Ruth A. Casby argued the cause for respondents 

MosaicMedical and Walgreen Co. Also on the briefs were 

Janet M. Schroer and Hart Wagner LLP.

Travis A. Merritt, Thomas F. Armosino Jr., and Frohnmayer,

Deatherage, Jamieson, Moore, Armosino & McGovern, 

P.C., filed the brief for respondents High Desert Personal 

Medicine, LLC, and Kevin Rueter, M.D.
Cite as 331 Or App 722 (2024) 723

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Reversed and remanded.
724 Stone v. Witt

AOYAGI, P. J.

While riding her bicycle, Dr. Marika Stone was 

struck and killed by a vehicle driven by Shantel Witt. 

Plaintiff, the personal representative of Stone’s estate, 

appeals the dismissal of his negligence claims against 

Dr. Nancy Brennan and her employer St. Charles Health 

System, Inc.; Dr. Kevin Rueter and his employer High 

Desert Personal Medicine, LLC; MosaicMedical; and 

Walgreen Co. (collectively, “defendants”).1 Defendants are 

medical providers and a pharmacy that, according to plaintiff, negligently treated Witt before she hit Stone. In the 

operative complaint, plaintiff alleges that defendants violated their statutory standards of care by prescribing and 

dispensing large amounts of addictive drugs to Witt, and 

by not taking steps to prevent Witt from misusing those 

drugs, despite knowing or having reason to know that Witt 

was abusing drugs. Plaintiff further alleges that, as a foreseeable result of defendants’ conduct, Witt drove a vehicle 

while under the influence of those drugs and struck and 

killed Stone. The trial court dismissed plaintiff’s claims 

against defendants for failure to state a claim, reasoning 

that, because Stone was not defendants’ patient, they were 

under no obligation to avoid creating a foreseeable risk of 

physical injury to her.

On appeal of the resulting limited judgments, plaintiff challenges the dismissal of his claims. He argues that 

defendants’ status as medical or pharmaceutical providers does not insulate them from the general obligation to 

avoid creating foreseeable risks of physical harm to others. 

As explained below, under these circumstances—where 

plaintiff alleges that defendants breached their statutory 

standards of care in treating their patient, and thereby not 

only created a risk of harm to the patient but also unreasonably created a foreseeable risk of physical injury to a third 

party—we agree. Accordingly, we reverse and remand.

1 We use “defendants” in this opinion to refer only to the defendants who 

appear on appeal. Plaintiff’s claims against Witt are not at issue in this appeal, 

nor are plaintiff’s claims against other defendants that were dismissed on 

statute-of-limitations grounds. 
Cite as 331 Or App 722 (2024) 725

I. PLAINTIFF’S ALLEGATIONS

We state the facts as alleged in the complaint. 

Tomlinson v. Metropolitan Pediatrics, LLC, 362 Or 431, 434, 

412 P3d 133 (2018). Given the nature of the legal issue on 

appeal, only the basic facts are necessary to our discussion.

Defendants Brennan, St. Charles, Rueter, High 

Desert, and MosaicMedical are medical providers that treated 

Witt at various times. Plaintiff alleges that they violated their 

statutory standard of care, ORS 677.095(1), as to Witt by prescribing her addictive drugs in excessive amounts and for 

excessive periods of time without appropriate medical reasons 

and despite knowing or having reason to know that Witt was 

abusing the drugs. See ORS 677.095(1) (“A physician licensed 

to practice medicine * ** by the Oregon Medical Board has 

the duty to use that degree of care, skill and diligence that is 

used by ordinarily careful physicians in the same or similar 

circumstances in the community of the physician or a similar 

community.”). Plaintiff alleges that defendants’ conduct foreseeably caused Witt to develop and continue to suffer from a 

substance abuse disorder and foreseeably created a risk that 

she would drive under the influence of the prescribed drugs 

and other drugs and injure a third party like Stone.

Defendant Walgreen is a pharmacy where Witt filled

some of her prescriptions. Plaintiff alleges that Walgreen’s 

pharmacists violated their rule-based standard of care, 

OAR 855-115-0105(1), as to Witt by continuing to dispense 

drugs to her despite knowing or having reason to know 

that Witt had a substance abuse disorder and was misusing and seeking excessive amounts of the drugs. See OAR 

855-115-0105(1) (requiring practicing pharmacists to “[u]se

that degree of care, skill, diligence and reasonable professional judgment that is exercised by a careful and prudent Pharmacist in the same or similar circumstances”).2

Plaintiff alleges that Walgreen’s pharmacists’ conduct also 

foreseeably contributed to Witt’s substance abuse disorder 

and foreseeably created a risk that she would drive impaired 

and injure someone like Stone.

2 OAR 855-115-0105(1) contains identical operative language to former OAR 

855-019-0200, renumbered as OAR 855-115-0105(1) (March 1, 2024), so we use 

the current numbering.
726 Stone v. Witt

For purposes of this appeal, the parties treat the 

question of the physician and medical practice defendants’ 

liability to plaintiff and the question of Walgreen’s liability 

to plaintiff as raising the same legal issue. Under the circumstances, we do the same and do not distinguish among 

the defendants in that regard, using “statutory standards 

of care” to refer generally to both ORS 677.095(1) and OAR 

855-115-0105(1).

II. FORESEEABILITY IN NEGLIGENCE LAW

Before discussing the specific facts of this case further, we pause to provide an overview of certain principles 

of negligence law that give context to the way in which the 

issues were framed below and now arise on appeal.

In Fazzolari v. Portland School Dist. No. 1J, 303 Or 

1, 17, 734 P2d 1326 (1987), the Supreme Court summarized 

the law of negligence:

“[U]nless the parties invoke a status, a relationship, or a 

particular 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.”

Thus, in an ordinary common-law negligence scenario, when 

a person unreasonably creates a foreseeable risk of physical 

harm, the class of potential plaintiffs to whom the person 

may be liable depends on the foreseeability of the risk to 

those plaintiffs. See, e.g., Moody v. Oregon Community Credit 

Union, 371 Or 772, 784, 542 P3d 24 (2023) (one of the elements of negligence is that the plaintiff “‘was within the 

class of persons’” the risk to whom made the defendant’s 

conduct unreasonable (quoting Solberg v. Johnson, 206 Or 

484, 491, 760 P2d 867 (1988))).

This case implicates the “unless” clause in 

Fazzolari—“unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, 

defines, or limits the defendant’s duty.” 303 Or at 17. Oregon 

courts have grappled with that clause for decades, including 

in the context of medical negligence claims alleging that a 
Cite as 331 Or App 722 (2024) 727

medical provider breached a statutory standard of care to a 

patient. In the process, the Supreme Court has made clear 

that foreseeability principles are relevant to claims arising 

out of a special relationship. “[I]f 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 relevant.’” Piazza 

v. Kellim, 360 Or 58, 73 n 9, 377 P3d 492 (2016) (quoting 

Cain v. Rijken, 300 Or 706, 717, 717 P2d 140 (1986), quoted 

with approval in Fazzolari, 303 Or at 16-17); see also Sloan 

v. Providence Health System-Oregon, 364 Or 635, 644, 437 

P3d 1097 (2019) (same); Oregon Steel Mills, Inc. v. Coopers & 

Lybrand, LLP, 336 Or 329, 342, 83 P3d 322 (2004) (same).

But exactly how foreseeability principles are relevant to claims arising out of a special relationship is less 

clear. As discussed in Piazza, foreseeability “plays a role in 

at least two overlapping common-law negligence determinations.” 360 Or at 70. First, it plays a role in determining “whether the defendant’s conduct unreasonably created 

a foreseeable risk of harm to a protected 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.” Id. Second, it plays a 

role in determining “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.” Id. at 70.

Thus, although foreseeability is a single concept 

under Fazzolari, it appears in at least two different places 

when mapped onto the elements of common-law negligence. 

See Fazzolari, 303 Or at 14 (explaining that the court’s decision in Stewart v. Jefferson Plywood Co., 255 Or 603, 469 P2d 

783 (1970), “made foreseeable risk the test both of negligent 

conduct and of liability for its consequences without phrasing the test in terms either of causation or of duty”); accord 

Piazza 360 Or at 70 (noting that foreseeability’s two roles in 

the common-law negligence framework are “overlapping”).
728 Stone v. Witt

There is a fairly well-developed body of case law 

regarding the second role of foreseeability in specialrelationship cases, i.e., what was once referred to as proximate cause. For example, in Sloan, the court explained that 

“when a physician-patient relationship exists,” the physician 

“has an affirmative duty” to meet the statutory standard of 

care as to the patient, but “[t]here is nothing in the definition 

of that duty that precludes foreseeability from being a limit 

on the scope of liability,” and “the fact that physicians have 

a specified duty of care does not mean that foreseeability is 

irrelevant in medical negligence cases.”3 364 Or at 644-45. 

In Piazza, the defendants had a special relationship with the 

decedent, and the issue was whether the complaint “alleged 

facts sufficient, if proved, to permit a jury determination 

that reasonable persons in defendants’ positions would have 

foreseen a risk to [the decedent]’s safety of the kind of harm 

that befell her.” 360 Or at 73-74 (internal quotation marks 

omitted)). In Oregon Steel Mills, Inc., 336 Or at 343-47, an 

accounting firm allegedly breached its duty to a client, resulting in the delayed sale of the client’s stock, and the Supreme 

Court held that the firm could not be held liable for losses 

caused by a decrease in the stock price during the period 

of delay, because the price drop was attributable to market 

forces and not a reasonably foreseeable result of the delay.

The case law is still developing regarding the first

role of foreseeability in special-relationship cases, i.e., 

“whether the defendant’s conduct unreasonably created 

a foreseeable risk of harm to a protected interest of the 

plaintiff such that the defendant may be held liable for that 

conduct.” Piazza, 360 Or at 70. This case pertains to that 

issue. Both below and on appeal, the parties have therefore 

focused their arguments on two cases that address that 

3 In Fazzolari, the court explained that “duty” is a conclusory term that 

stands in for either a circumstance-specific judicial evaluation of foreseeability or 

a categorical limitation on liability with articulable and reasoned origins. 303 Or

at 17 (“‘Defendants sometimes deny liability * ** by arguing that although they 

may have breached a duty to someone, it was not a “duty to” the plaintiff. But that 

argument can be more directly phrased in terms of foreseeability, and perhaps 

other reasons for extending or limiting the scope of liability for defendant’s negligence, than by using the conclusory word “duty” as a premise.’” (Quoting Cain, 

300 Or at 715.)). However, as it did in Fazzolari, the court has continued to use 

the word “duty” to describe the obligations imposed by special relationships and 

other articulable and reasoned limits on liability.
Cite as 331 Or App 722 (2024) 729

issue—Zavalas v. Dept. of Corrections, 124 Or App 166, 861 

P2d 1026 (1993), rev den, 319 Or 150 (1994), and Tomlinson, 

362 Or 431—which we discuss at length in our analysis.4

III. THE TRIAL COURT’S RULINGS

We return to the specific facts of this case. As 

previously described, plaintiff brought negligence claims 

against defendants relating to Stone’s death. Except for 

MosaicMedical, each defendant moved to dismiss the claims 

against them under ORCP 21 A(1)(h), on the ground that the 

alleged facts failed to state a claim because Stone was a member of the public, not defendants’ patient.5

 MosaicMedical 

filed its motion later than the other defendants and, due to 

the timing, styled it a motion for summary judgment under 

ORCP 47 C, but it was “functionally equivalent to a motion 

to dismiss for failure to state a claim,” so it is treated the 

same and subject to the same standard of review.6 Johnson 

v. Johnson, 302 Or 382, 388 n 5, 730 P2d 1221 (1986).

As grounds for dismissal, defendants argued that 

the complaint alleges that defendants violated their standards of care as to Witt, rather than Stone, and that they 

could not be held liable for Stone’s death when Stone was not 

their patient and, consequently, they owed no duty to Stone.

The trial court granted defendants’ motions. In 

short, the court concluded that, as to professional negligence 

4 The court has also held that foreseeability determines how far liability 

extends in cases involving a somewhat different special relationship scenario—

one in which the defendant’s special, usually custodial, relationship with an actor 

creates an affirmative duty to protect the general public from foreseeable risks 

arising from the actor’s conduct. See, e.g., Buchler v. Oregon Corrections Div., 316 

Or 499, 506-07, 853 P2d 798 (1993) (risk of physical injury to members of the 

public arising from negligently allowing an inmate to escape from custody was 

not foreseeable because the defendant had no knowledge or reason to know that 

the inmate would be violent); Cain, 300 Or at 709 (accepting custody of dangerous 

psychiatric patient pursuant to a statute created a duty to use reasonable care to 

treat him and control his acts, and, consequently, protect the general public from 

foreseeable risks that he created). 

5 ORCP 21 A(8) was renumbered ORCP 21 A(1)(h) effective January 1, 2022. 

The relevant language is identical, so we use the current numbering. 

6 The form of MosaicMedical’s filing is not at issue. However, to promote good 

practice, we note that, when challenging the sufficiency of a complaint, “the better practice might be to file a motion to dismiss under ORCP 21A[(1)(h)] or for a 

judgment on the pleadings under ORCP 21B.” Johnson, 302 Or at 388; Payless 

Drug Stores v. Brown, 300 Or 243, 246, 708 P2d 1143 (1985) (similar statement). 
730 Stone v. Witt

claims, foreseeability is not relevant to determining liability in the first instance. The court viewed existing Oregon 

case law as recognizing a “general rule that medical professionals are not liable to non-patient third parties for their 

professional negligence”—a no-duty rule—with a narrow 

exception that turns not on foreseeability but on case-bycase factors that the court identified in Tomlinson.

IV. THE PARTIES’ ARGUMENTS ON APPEAL

On appeal, plaintiff challenges the dismissal rulings, arguing that there is no general rule that medical 

professionals are not liable to nonpatient third parties for 

their professional negligence and that, in these circumstances, defendants can be held liable if plaintiff proves his 

allegations. Plaintiff relies on our decision in Zavalas and 

argues that the Supreme Court’s later decision in Tomlinson 

is distinguishable on the facts but legally consistent with 

Zavalas. Ultimately, plaintiff contends that defendants’ status as medical providers does not insulate them from the 

obligation that everyone has not to unreasonably create 

foreseeable risks of physical harm to others.

In response, defendants argue that, except in very 

limited circumstances, physicians and pharmacists owe a 

duty only to their patients, that any potential liability to 

third parties is narrowly circumscribed by Tomlinson, 

and that Zavalas is largely irrelevant because it predates 

Tomlinson.

V. LEGAL ANALYSIS

Plaintiff argues that this case is controlled by 

Zavalas, a 1993 decision of this court, and defendant argues 

that it is controlled by Tomlinson, a 2018 decision of the 

Supreme Court. We therefore proceed to discuss those cases.

In Zavalas, Shonkwiler caused a car accident while 

driving under the influence of Xanax and heroin, causing the 

death or physical injury of several children. 124 Or App at 

170. The plaintiffs, on behalf of the children, brought claims 

against Shonkwiler’s physician, alleging that he “was negligent in prescribing Xanax to Shonkwiler when she presented 

symptoms of ‘psychotic illness, depression, chronic bipolar 
Cite as 331 Or App 722 (2024) 731

mental disorder and chronic drug use,’ and in authorizing 

the refill of that prescription.” Id. The physician argued that 

he had no duty to the children. Id. He asserted that, as a 

matter of law, “a physician has no duty to third parties” and 

that, consequently, “a physician is shielded from liability to 

third parties who claim that the physician’s negligent treatment of a patient was the foreseeable cause of their harm.” 

Id. at 171.

We disagreed, rejecting the proposition that “that 

under no circumstances can a physician ever be liable to a 

nonpatient third party,” and noting that we had found no 

authority for it. Id. at 173. To the contrary, we concluded 

that when a physician prescribes drugs to a patient in violation of their statutory standard of care and, as a result, 

the patient foreseeably injures third parties, the physician 

may be liable to the third parties in negligence. Id. at 173-

74. Under Zavalas, “professionals are not entitled to the 

benefit of an across-the-board ‘no duty’ rule merely because 

they are not in privity with those whom their negligent conduct affects.” Delaney v. Clifton, 180 Or App 119, 124, 41 

P3d 1099, rev den, 334 Or 631 (2002) (describing the holding 

of Zavalas); see also Docken v. Ciba-Geigy, 86 Or App 277, 

280-81 739 P2d 591, rev den, 304 Or 405 (1987) (where the 

plaintiff’s decedent died as a result of taking a drug prescribed for his brother, it was error to dismiss the plaintiff’s 

negligence claims against the prescribing physician, pharmacy, and drug manufacturer, because we could not “say as 

a matter of law that the harm was not foreseeable or that 

the complaint fails to allege facts from which a jury could 

find defendants negligent”).

This case is directly analogous to Zavalas and 

appears on its face to be controlled by Zavalas. However, 

defendants argue that Tomlinson effectively trumps Zavalas, 

so we next consider Tomlinson.

In Tomlinson, two parents brought negligence claims

against several medical providers who had physician-patient 

relationships with the parents’ first child, but not with the 

parents themselves. 362 Or at 434. The parents alleged that 

the defendants had negligently failed to timely diagnose 

their first child’s genetic disorder; that they would not have 
732 Stone v. Witt

had a second child if they had known of the genetic disorder; 

that they suffered economic and emotional damages as a 

result of the defendants’ negligence, related to their second 

child having the same genetic disorder; and that their damages were a foreseeable consequence of the defendants’ negligence. Id. The trial court dismissed the plaintiffs’ claim for 

failure to state a claim. Id.

On review, the Supreme Court reversed. As to 

the parents’ claims, the court identified the primary issue 

in dispute as being whether the parents “had identifiable 

interests that defendants were legally obligated to protect 

under the facts alleged in their respective claims.” Id. at 

440. The defendants argued that “a direct physician-patient 

relationship between the parties” was required and that the 

plaintiffs could not state negligence claims based “on the 

foreseeability of the injuries alone.” Id. at 442.

The Supreme Court agreed on the latter point—

that the plaintiffs’ negligence claims could not be based on 

foreseeability alone—“for two reasons.” Id. The first reason 

was that “the parents allege[d] only economic and emotional 

injuries.” Id. The court cited cases explaining that “liability 

for purely economic harm must be predicated on some duty 

of the negligent actor to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm,” Oregon Steel Mills, Inc., 336 Or at 341 (internal 

quotation marks omitted), and that liability for emotional 

injuries cannot be based on foreseeability alone but instead 

requires “another ‘legal source’ of liability for the plaintiff to 

recover emotional distress damages,” Philibert v. Kluser, 360 

Or 698, 703, 385 P3d 1038 (2016). See Tomlinson, 362 Or at 

442 (citing those cases).

The second reason was that “the parents allege[d] 

that their injuries resulted from defendants’ failure to take 

affirmative steps to protect them from a risk of harm that 

defendants did not create—namely, the reproductive risks 

associated with the parents’ preexisting genetic composition.” Id. at 442-43. The court recognized that distinction 

as one emphasized in the Restatement. “An actor’s conduct 

creates a risk when the actor’s conduct or course of conduct 

results in greater risk to another than the other would have 
Cite as 331 Or App 722 (2024) 733

faced absent the conduct.” Restatement (Third) of Torts: Phys. 

& Emot. Harm § 7 comment o. “[A]ctors engaging in conduct 

that creates risks to others have a duty to exercise reasonable care to avoid causing physical harm.” Restatement § 7 

comment a (emphasis added); see also Fazzolari, 303 Or at 

17 (generally, “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” (emphasis added)). By contrast, an actor who did not 

create the risk has a duty to protect against it only in limited circumstances: “An actor whose conduct has not created a risk of physical or emotional harm to another has 

no duty of care to the other unless a court determines that 

one of the affirmative duties provided in §§ 38-44 is applicable.” Restatement § 37; see id. § 40 (describing special 

relationships); see also Tomlinson, 362 Or at 442-43 (citing 

Restatement § 37).

For those two reasons, the Tomlinson court agreed 

with the defendants that, “without some justification for providing legal protection, a person is not generally required to 

affirmatively protect the economic and emotional interests of 

others.” Tomlinson, 362 Or at 442 (emphases added).

The court disagreed, however, that the parents 

needed a direct physician-patient relationship with the 

defendants to state a negligence claim. Id. at 443. “A direct 

physician-patient relationship can be one ground for creating affirmative protections of a plaintiff’s economic and emotional interests under negligence law.” Id. (emphasis in original). However, “[i]t does not necessarily follow that a direct 

physician-patient relationship is the only such ground available to the parents.” Id. (emphasis in original); see also id. at 

444-45 (rejecting the defendants’ proposition that “the very 

essence of medical services is to diagnose and treat patients

and not to benefit nonpatients” (emphasis in original)).

To the contrary, the Tomlinson court concluded 

that, “in carrying out a professional obligation to a client, 

the professional may be required to protect the interests of a 

third party as well.” Id. at 445. Whether the professional is 

required to do so must be decided on a case-by-case basis. Id. 
734 Stone v. Witt

The court identified three factors that, upon consideration, led 

it conclude that the defendants were potentially liable to the 

parents in Tomlinson: (1) “whether the relationship between 

the parties is a type of relationship that generally entails 

a mutual expectation of service and reliance”; (2) “whether 

recognizing such a claim would interfere with or impair the 

loyalties that the professional owes to the client”; and (3) “as 

in other circumstances involving liability for economic and 

emotional injuries,” “whether the potential plaintiffs were 

identifiable to the defendant or otherwise could be defined as 

a class that avoids indeterminate liability.”7 Id. at 446.

We agree with plaintiff that Zavalas and Tomlinson 

are not in conflict. The Tomlinson court diverged from the 

foreseeability path laid in Fazzolari and went down a different path for two specific reasons—because the parents 

sought damages only for economic and emotional harm, not 

physical injury, and because the defendants did not create 

the risk to which the parents were exposed. Id. at 442. It 

was each or both of those circumstances that led the court to 

conclude that more than foreseeability was required for the 

parents to state a negligence claim against the defendants. 

Moreover, we understand the factors discussed in Tomlinson 

to be relevant only in such circumstances. That is, when the 

typical foreseeability framework articulated in Fazzolari 

applies—when the plaintiff alleges that the defendant’s conduct created a risk to a universally protected interest like 

the interest in avoiding physical harm—that is the end of 

the matter, and there is no need to consider the Tomlinson 

factors.

Neither of the circumstances from Tomlinson exists 

in this case. Here, plaintiff seeks damages for physical 

injury. See Philibert, 360 Or at 703 (the interest in being 

“free from physical harm at the hands of another” is “the 

simplest legally protected interest” (internal quotation 

marks omitted)). Further, unlike in Tomlinson, defendants 

allegedly created the risk to Stone by negligently prescribing 

7 Regarding the third factor, the court cited Philibert, where it observed that 

“‘[e]motional distress, like economic loss, ripples throughout society as a foreseeable result of negligent conduct. Without some limiting principle in addition to 

foreseeability, permitting recovery for emotional injuries would create indeterminate and potentially unlimited liability.’” Id. (quoting Philibert, 360 Or at 704).
Cite as 331 Or App 722 (2024) 735

and dispensing drugs to Witt.8 That is a critical distinction 

under Tomlinson and the Restatement.

Ultimately, we understand Tomlinson to hold that, 

because of the special relationship between physicians and 

patients, a physician’s duty to protect a patient extends 

beyond risks created by the physician—and that affirmative duty also may extend to third parties in some circumstances. We also understand Tomlinson to hold that, when 

only economic or emotional damages are sought, foreseeability alone is not enough. We do not understand Tomlinson 

to hold that a physician has no duty to protect nonpatient 

third parties from risks created by the physician. Nor do we 

understand Tomlinson to hold that more than Fazzolari foreseeability is required to hold a physician liable for breaching 

a statutory standard of care in treating a patient under circumstances that unreasonably create a foreseeable risk of 

physical injury to a third party.9

We emphasize that this is a case in which defendants allegedly breached their statutory standards of care 

to their patient. It is not a case where, for example, a physician complied with the standard of care for prescribing 

drugs to a patient and the patient then physically injured a 

third party—a situation in which imposing liability would 

create a much greater risk of interfering with or impairing 

8 Another case in which the medical providers did not create the risk is 

Maltais v. PeaceHealth, 326 Or App 318, 532 P3d 510, rev den, 371 Or 509 (2023). 

There, medical providers were allegedly negligent in failing to admit a dangerous patient to the hospital, and that person subsequently injured a third party. 

The medical providers themselves did not create the risk to the third party—

rather, the danger existed due to the patient’s dangerousness—so we applied 

the Tomlinson factors to determine whether she could state a negligence claim 

against them. Id. at 326-28.

9 To the extent that defendants rely on Sloan and Mead v. Legacy Health 

System, 352 Or 267, 276, 283 P3d 904 (2012), those cases are distinguishable 

because they did not involve third parties. See Sloan, 364 Or at 645 (discussing 

a physician’s “specified duty of care” and “affirmative duty” to patients in the 

context of a claim brought on behalf of a patient who allegedly died as a result 

of medical negligence); Tomlinson v. Metropolitan Pediatrics, LLC, 245 Or App 

658, 673, 366 P3d 370 (2015), aff’d, 362 Or 431, 412 P3d 133 (2018) (“the issue in 

Mead was whether the plaintiff—whose negligence claim was premised on the 

existence of a physician-patient relationship—had demonstrated the existence 

of that relationship,” and “the court had no reason to—and did not—address the 

cognizability” of a third-party claim). Moreover, as to Mead, it cannot be read in 

a way that conflicts with the Supreme Court’s subsequent decision in Tomlinson, 

362 Or at 445. 
736 Stone v. Witt

the physician’s duties to the patient. Cf. Tomlinson, 362 Or at 

466 (considering whether the potential for liability to third 

parties “would interfere with or impair the loyalties that the 

professional owes to the client”). This case involves defendants’ alleged failure to comply with their statutory standards of care in treating and dispensing to their patient, 

Witt, and an allegedly foreseeable resulting physical injury 

to a third party, Stone.

In sum, Zavalas is controlling in this case, and 

Tomlinson does not change that. The trial court erred in 

dismissing plaintiff’s negligence claims against defendants. 

If this case goes to trial, it will be for the jury to decide as 

to each defendant “whether the defendant’s conduct unreasonably created a foreseeable risk of the subsequent conduct 

[by Witt], and the type of harm that resulted from it.” Scott 

v. Kesselring, 370 Or 1, 21-22, 513 P3d 581 (2022).

Reversed and remanded.