Sager v. McClenden , 296 Or. 33 ( 1983 )

LENT, J.,

concurring.

I concur, but I write separately only to comment upon the reference in the court’s opinion to the decision of this court in Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 587 P2d 75 (1978). In that case the plaintiff argued that the complaint stated a cause of action for “negligence per se” for violation of ORS 471.130(1). Plaintiff did not argue that the violation of the statute created a right independent of the trappings of “negligence” to recover damages for injury resulting from violation of the statute, and we did not address that concept.

Were that case before us today, the analysis might well be different. See Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983). I have come to the conclusion that cases such as Davis present theories of recovery not dependent upon that of “negligence per se.”