In Banc

LANDAU, J.

Affirmed.

Edmonds, J., dissenting.

LANDAU, J.

Defendant appeals from a judgment on a jury verdict awarding damages to plaintiff for injuries he suffered when his van was struck by a car driven by defendant's off-duty employee, Matt Theurer. Plaintiff's theory is that defendant was negligent in working Theurer unreasonably long hours, knowing that he would then be a hazard to himself and others when he drove himself home from the work place. Defendant assigns error to the trial court's denial of several motions, to its overruling of an exception to one of plaintiff's jury instructions and to its refusal to allow the jury to compute the percentage of fault attributable to Theurer. We affirm.

We state the facts in the light most favorable to plaintiff, who prevailed at trial. Dikeman v. Carla Properties, Ltd., 127 Or. App. 53, 62, 871 P.2d 474 (1994). Theurer was an 18-year-old high school senior. He participated in numerous extracurricular activities, and he was a member of the National Guard. He also worked part time at one of defendant's fast food restaurants. He was known to be an enthusiastic worker, but his family and friends believed that he was trying to do too much and was not getting enough sleep.

At the time of the accident, defendant had many employees who attended high school during the day and worked part time in the evenings. Defendant's restaurant closed at 11 p.m., and cleanup and closing procedures sometimes continued past midnight. Defendant's managers generally tried to accommodate employee scheduling requests, but that was not always possible. However, defendant had a policy of not scheduling high school students to work later than midnight more than once per week. The employee manual said that employees also were not to be scheduled for split shifts. According to one of defendant's managers, that was because employees did not like having to commute for split shifts, and they were to be avoided "so people can get their rest." Notwithstanding defendant's efforts, employees still sometimes complained about being tired after closing, and defendant was aware that at least two of its employees had automobile accidents as a result of falling asleep while driving home after working late shifts.

A few times each year, defendant would schedule special cleanup projects to be performed after midnight, while the restaurant was closed. Employees other than high school students usually would be scheduled to perform that work. One of defendant's managers testified that, if student workers were needed, such projects could be scheduled for weekends or during spring break. However, due to the untimely dismissal of another employee, one of defendant's managers asked for a volunteer to fill in for the cleanup shift that was scheduled from midnight to 5 a.m. on a Tuesday. Theurer offered to work the extra shift. The manager knew that Theurer drove approximately 20 miles to and from work.

During the week before the special cleanup project, Theurer worked five nights. One of those nights, he worked past midnight, one — the night before the cleanup project — until 11:30 p.m., one until 11 p.m. and two until approximately 9 p.m.

On Monday, April 4, 1988, Theurer worked his regular shift from 3:30 p.m. to 7:30 p.m., followed by the cleanup shift beginning at midnight and ending on Tuesday, April 5, at about 5:00 a.m. After the cleanup project was completed, Theurer worked yet another shift from 5:00 a.m. to 8:21 a.m. During that shift, Theurer told the manager that he was tired and asked to be excused from his next regularly scheduled shift so that he could rest. The manager agreed.

Theurer then began the trip home. A short time later, he became drowsy or fell asleep while driving his car approximately 45 miles per hour on a two-lane highway. At a bend in the road, his car crossed the dividing line into the lane of oncoming traffic and crashed into plaintiff's van. Theurer died, and plaintiff was severely injured.

Plaintiff settled his potential claims against Theurer's representatives. Plaintiff then filed this action, alleging that defendant was negligent in requiring Theurer to work too many hours without adequate rest, and in permitting Theurer to drive a car when defendant should have known that Theurer could not drive safely. Defendant moved to dismiss the complaint, on the ground that the allegations do not support the conclusion that plaintiff's injuries were a reasonably foreseeable consequence of defendant's conduct, as a matter of law. The trial court denied the motion. Defendant then answered, denying any negligence. Defendant asserted two affirmative defenses. In the first, defendant alleged that plaintiff's injuries were caused by his own negligence. In the second affirmative defense, defendant alleged that plaintiff's injuries were caused by the negligence of Theurer and, accordingly, any negligence of defendant must be determined in comparison with that of both plaintiff and Theurer. Plaintiff moved to dismiss the second affirmative defense on the ground that the jury is not entitled to consider the relative fault of parties who have settled and are not before the court. The trial court granted the motion.

The case was then tried to a jury. During the trial, plaintiff amended his complaint, so that the sole allegation of negligence is that

"[d]efendant was negligent in working Theurer more hours than was reasonable under the circumstances when defendant knew, or in the exercise of reasonable care should have known, that Theurer would operate a motor vehicle and be a hazard to himself and to others."

Defendant moved for a directed verdict, arguing that the evidence could not support a verdict that plaintiff's injuries were a reasonably foreseeable consequence of defendant's decision to allow Theurer to work the hours that he did. Defendant also asserted that plaintiff's claim fails as a matter of law, because state labor laws have preempted any common law liability concerning the scheduling of workers, and there is no evidence of violations of those statutes. The trial court denied the motion. The jury was instructed, in relevant part:

"Now, ladies and gentlemen, in general it is the duty of every person in our society to use reasonable care to avoid damage that would be reasonably anticipated. Reasonable care is that care which persons of ordinary prudence exercise in the management of their own affairs to avoid injury to themselves or to others.

"Common law negligence, therefore, is the doing of some act that a reasonably careful person would not do or it's the failure to do something that a reasonably careful person would do under the same or similar circumstances. The care exercised should be in keeping with dangers apparent or reasonably foreseeable at the time and place in question and not in the light of resulting sequence of events or hindsight.

"A person is liable only for the reasonably foreseeable consequences of his, her, or its actions. There are two things that must be foreseeable. First, the plaintiff 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 in the defendant's conduct. It is not necessary that a party foresee either the precise injury or the exact manner of its occurrence."

The jury then returned a verdict in favor of plaintiff, finding that plaintiff was not negligent at all.

Defendant appealed. Approximately three months after the filing of the notice of appeal, a magazine article reported that at least one of the jurors in this case said that the jury increased its award by $100,000 after someone speculated that plaintiff would have to pay a lawyer one-third of his damages for a contingent fee. Defendant moved for a new trial, arguing that the article constituted evidence of jury misconduct. The trial court denied the motion.

In its first assignment of error, defendant contends that the trial court should have granted defendant's motion to dismiss plaintiff's complaint. In its second assignment of error, defendant contends that the trial court should have granted defendant's motion for a direct verdict. In support of both assignments, defendant argues that it cannot be held liable to plaintiff as a matter of law, because it had no duty to prevent Theurer from working as many hours as he did. According to defendant, as Theurer's employer, it had no duty to limit Theurer's work schedule, both because employers have no such duty at common law and because state labor statutes have preempted the field. Plaintiff argues that, under Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987), the defendant's liability in negligence generally depends on whether the defendant's conduct unreasonably created a foreseeable risk of harm to the plaintiff. That, plaintiff contends, is a question of fact for the jury to decide. According to plaintiff, defendant's status as an employer does not entitle it to any limitations on that general duty, and the state's labor statutes do not impose any limitations on that duty either.

In reviewing the denial of a motion for a directed verdict, we view the evidence in the light most favorable to the nonmoving party, extending to that party the benefit of every reasonable inference that may be drawn from the evidence. Shockey v. City of Portland, 313 Or. 414, 422-23, 837 P.2d 505 (1992), cert den ___ US ___, 113 S Ct 1813 (1993). In reviewing the denial of a motion to dismiss following trial on the merits, we apply the same standard of review. See Scholes v. Sipco Services Marine, Inc., 103 Or. App. 503, 506, 798 P.2d 694 (1990). Therefore, we consider together defendant's first two assignments of error.

The necessary starting point for any discussion of the sufficiency of the evidence in a negligence case is the Supreme Court's decision in Fazzolari. In that case, the court held that

"unless 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. The role of the court is what it ordinarily is in cases involving the evaluation of particular situations under broad and imprecise standards: to determine whether upon the facts alleged or the evidence presented no reasonable fact-finder could decide one or more elements of liability for one or the other party." 303 Or at 17.

Defendant and the dissent argue that the foregoing test was recently overruled in Buchler v. Oregon Corrections Div., 316 Or. 499, 853 P.2d 798 (1993). We find no such holding in Buchler. To the contrary, the court quoted from and applied the two-step analysis just quoted. Three members of the court suggested that Fazzolari simply ought to be overruled. However, the majority of the court expressly declined to do that. Accordingly, at least until one more vote emerges on the Supreme Court to overrule Fazzolari, we are constrained to apply it. That is, in fact, the manner in which this court has routinely and consistently analyzed negligence cases, even since the Supreme Court's decision in Buchler. See, e.g., Slogowski v. Lyness, 131 Or. App. 213, 217, 884 P.2d 566 (1994); McAlpine v. Multnomah County, 131 Or. App. 136, 141, 883 P.2d 869 (1994), rev den 320 Or. 507 (1995); Zavalas v. Dept. of Corrections, 124 Or. App. 166, 171, 861 P.2d 1026 (1993), rev den 319 Or. 150 (1994). We proceed, therefore, with our application of the principles of law articulated in Fazzolari.

Defendant argues that it was Theurer's employer and, because of that relationship, it was subject to a limited duty to both Theurer and plaintiff, as a matter of law. Defendant relies on Restatement (Second) of Torts §§ 315 and 317 (1965). Section 315 provides that:

"There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

"(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

"(b) a special relation exists between the actor and the other which gives to the other a right to protection."

Section 317 states one special relationship that gives rise to an exception to that general rule:

"A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

"(a) the servant

"(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

"(ii) is using the chattel of the master, and

"(b) the master

"(i) knows or has reason to know that he has the ability to control his servant, and

"(ii) knows or should know of the necessity and opportunity for exercising such control."

Defendant argues that, because the evidence shows that the accident that caused plaintiff's injuries occurred off defendant's premises and did not involve the use of its chattels, the exception to the general rule that is described in section 317 does not apply and, therefore, it is entitled to rely on the general rule of nonliability for the conduct of others that is stated in section 315 of the Restatement (Second) of Torts.

The linchpin of defendant's argument is section 315, which states a general rule of nonliability for failing to control the conduct of third persons. It applies to all persons, unless a special relation gives rise to a duty to control the conduct of the third person. By demonstrating that the special relation exception does not apply in this case, defendant asserts that it is entitled to rely on the general rule of nonliability stated in section 315. The linchpin, however, will not support the weight of defendant's argument.

Accepting, for the sake of argument, that section 317 does not apply, defendant is not entitled to limit its duty to plaintiff by invoking section 315. The limitation of section 315 does not arise out of any particular status, relationship or statutory standard of conduct. It is a standard that, according to the Restatement (Second) of Torts, applies to all persons. However, under Fazzolari, unless a defendant invokes a special status or relationship, or is subject to a particular statutory standard of conduct, it is subject to the general duty to avoid conduct that unreasonably creates a foreseeable risk of harm to a plaintiff. Fazzolari, 303 Or at 17; see also Fuhrer v. Gearhart By The Sea, Inc., 306 Or. 434, 438, 760 P.2d 874 (1988).

Defendant argues that, if section 315 of the Restatement (Second) of Torts does not limit its duties to plaintiff, the state's labor statutes clearly do. According to defendant, ORS 652.010 "has declared the public policy of this state as to the number of hours that an employee shall be permitted to work," and plaintiff has not pleaded a violation of that statute. Similarly, defendant asserts that ORS 653.261 authorizes the Commissioner of the Bureau of Labor and Industries to prescribe maximum hours of employment, and that plaintiff again has failed to plead a violation of that statute or any regulations promulgated thereunder. We disagree.

To begin with, ORS 652.010 does not prescribe any particular number of hours that an employer may require its employees to work. It merely states:

"It is the public policy of this state that no person shall be hired, nor permitted to work for wages, under any conditions or terms, for longer hours or days of service than is consistent with the person's health and physical well-being * * *." ORS 652.010(1).

Moreover, the statute does not apply to the operation of restaurants. By its terms, it applies only to the operation of "any mill, factory or manufacturing establishment." ORS 652.010(2).

Defendant's reliance on ORS 653.261 is equally unavailing. That section does not establish any maximum number of hours of work. It merely authorizes the Commissioner of the Bureau of Labor and Industries to do so. In addition, ORS 653.261 and the regulations promulgated thereunder relate to the protection of workers, not to the protection of the general public from the consequences of a worker's conduct. See Zavalas, 124 Or App at 171.

Defendant argues that, even if it is subject to the general standard of Fazzolari, the evidence in this case was insufficient to allow the court to send it to the jury. According to defendant, there is no evidence that it knew or should have known that Theurer was so exhausted or fatigued that it should have foreseen that working him three shifts in one 24-hour period would create a foreseeable risk of harm to motorists such as plaintiff. Plaintiff argues that defendant failed to preserve that argument and that, in any event, the evidence is sufficient to support the trial court's ruling.

We do not agree with plaintiff that defendant failed to preserve the argument. Defendant argued below that

"[t]here has been no * * * evidence of [defendant's] having any knowledge of impairment on the part of Matt Theurer, nor has there been proof that [defendant] should have known that Theurer had an impairment based upon the facts that have been introduced."

The argument was preserved.

We do agree, however, that the evidence was sufficient to support the trial court's ruling. In Donaca v. Curry Co., 303 Or. 30, 38, 734 P.2d 1339 (1987), decided the same day as Fazzolari, the Supreme Court said that "in an extreme case a court can decide that no reasonable factfinder could find the risk foreseeable * * *." This is not such an extreme case. There is evidence that defendant controlled all work assignments. Therefore, defendant knew or had reason to know of the number of hours Theurer had been working. There also is evidence that defendant ordinarily did not use high school students to work after midnight, and when it did, it tried to limit that late shift to once a week. Defendant also had a policy of not working its employees two shifts in one day. According to at least one of defendant's managers, those policies were adopted and enforced out of concern that employees not become overly tired on the job. In fact, defendant was aware that at least two of its employees had recently had automobile accidents as a result of falling asleep while driving home after working late shifts. There is evidence that, during and after his late-night shift, Theurer was visibly fatigued, and that defendant's managers were on site and saw Theurer throughout that shift. It is undisputed that defendant knew that Theurer was a high school student, and that most of the high school students who worked there drove to work in their own cars. On the basis of that evidence, a reasonable jury could conclude that defendant knew or should have known that working Theurer so many hours would impair his ability to drive home safely.

Defendant and the dissent insist that, because Theurer "volunteered" to work so many hours, the evidence simply is insufficient to establish defendant's negligence, as a matter of law. First of all, in so characterizing the facts, defendant and the dissent put a "spin" on the evidence to which they are not entitled. Shockey, 313 Or at 422-23. The evidence, taken in the light most favorable to plaintiff, shows that Theurer did not, out of the blue, volunteer to take three shifts in one 24-hour period. Defendant affirmatively asked him to work those hours. Moreover, the evidence shows that defendant — not its employees — generally controlled all work assignments and that defendant penalized its employees for not working as assigned.

Second, even indulging the assumption that Theurer volunteered for his all-night shift, the evidence still is sufficient to support the jury's verdict. Defendant's managers knew that Theurer already had been scheduled to work more than its own policies permitted. Moreover, they saw him in a visibly fatigued state and continued to work him as scheduled. In that regard, defendant was much like a bartender who served alcoholic beverages to a visibly intoxicated person who then caused an automobile accident that harmed another. No one required the intoxicated person to have the extra drink. He or she asked for the drink and "volunteered" to pay for it. Nevertheless, the courts have held that, because the bartender saw the driver in a visibly intoxicated state, and it is reasonably foreseeable that the customer will drive when he or she leaves, the bartender is liable for the consequences of the automobile accident. Campbell v. Carpenter, 279 Or. 237, 243-44, 566 P.2d 893 (1977).

Finally, defendant itself conceded at trial that, if it had allowed Theurer to "volunteer" to work around the clock three full days, the

"court can almost say as a matter of law, allowing someone to work that long without any rest or sleep might very well constitute affirmative misconduct by an employer, but [it] may be a matter of degrees * * *."

Thus, whether Theurer volunteered or not simply is not the point. The point is whether, as plaintiff alleged in his complaint, defendant "was negligent in working Theurer more hours than was reasonable." That is, as defendant said at trial, "a matter of degrees." In other words, it is a matter for the jury to decide, not for the court to resolve as a matter of law.

Defendant, the dissent and amici curiae the National Council of Chain Restaurants and the Defense Research Institute, Inc., implore us to reverse the trial court's judgment on the public policy ground that the result is "patently unreasonable," "shocking," "farfetched" and "goes beyond the common-sense application of tort law." However, that argument was not made to the trial court, and we will not consider it for the first time on appeal. Our function is to determine whether the trial court made an error of law about issues actually raised below and properly assigned as error on appeal. Ailes v. Portland Meadows, Inc., 118 Or. App. 517, 848 P.2d 138, rev den 318 Or. 24 (1993).

In its third assignment of error, defendant argues that the trial court incorrectly instructed the jury on the elements of plaintiff's negligence claim. According to defendant, the instruction was faulty in that it was based on the general duty to avoid conduct that unreasonably creates a foreseeable risk of harm, instead of the more limited duties that it contends apply under the Restatement (Second) of Torts and the state's labor statutes. We will reverse the trial court only if we conclude that the jury instruction it delivered probably created an erroneous impression of the law in the minds of the jurors, which affected the outcome of the case. Waterway Terminals v. P.S. Lord, 256 Or. 361, 370, 474 P.2d 309 (1970). Defendant's arguments in support of its third assignment are essentially the same as those asserted in support of the previous two. For the reasons already stated, we again reject those arguments. The trial court did not err.

In its fourth assignment of error, defendant contends that the trial court should have granted defendant's motion for a new trial. Defendant argues that the magazine article that reported the possibility that the jury increased its award to cover plaintiff's attorney fees was "clear evidence of actual jury misconduct * * *." In reviewing the denial of a motion for a new trial based on juror misconduct,

"we generally defer to the discretion of the trial court[,] * * * because the trial judge is usually in a better position to evaluate the circumstances of each case and the prejudicial effect, if any, of any claimed irregularity." Moore v. Adams, 273 Or. 576, 579, 542 P.2d 490 (1975). (Citations omitted.)

The Supreme Court elaborated on that standard of review in Blanton v. Union Pacific Railroad Co., 289 Or. 617, 616 P.2d 477 (1980). In that case, one of the jurors wrote a letter to the trial judge, suggesting that the jury may have reached a quotient verdict. The trial judge declined to grant a motion for a new trial on the basis of the juror's letter. The Supreme Court affirmed, and explained its decision as follows:

"While jurors' affidavits are receivable in evidence in the sense that the trial court should permit them to be filed, affidavits which disclose nothing more than oral misconduct during the jury's deliberations cannot impeach a verdict. In order to make plain the meaning of the rule, we will restate it: The affidavit of a juror concerning utterances of other jurors during the deliberations or at any other material time cannot warrant the impeachment of a verdict. The kind of misconduct of a juror that will be considered in an attack upon a verdict by a juror's affidavit * * * is misconduct that amounts to fraud, bribery, forcible coercion or any other obstruction of justice that would subject the offender to a criminal prosecution therefor." 289 Or at 630-31. See also Ertsgaard v. Beard, 310 Or. 486, 497, 800 P.2d 759 (1990).

In this case, the information on which defendant based its motion was insufficient to impeach the jury's verdict. As in Blanton, the magazine article suggests that one or more jurors may have engaged in "oral misconduct." There is no evidence of fraud, bribery, forcible coercion or any other criminal obstruction of justice. Thus, the trial court did not err in denying defendant's motion for a new trial.

Finally, defendant assigns error to the trial court's dismissal of defendant's second affirmative defense, which alleged that defendant's fault, if any, should have been "compared to that of plaintiff and Matthew Theurer * * *." Defendant argues that, under ORS 18.485(3), if it is found to be less than 15 percent at fault for economic damages, its liability for economic damages is several only. It argues that, because the purpose of that provision is to prevent tortfeasors who are minimally at fault from being held liable for more than their fair "portion of the wrong committed," failing to allow comparison with all tortfeasors is contrary to that statute. Plaintiff argues that the language of the statute and its context clearly demonstrate that the comparison of fault involves only parties to the action, and not to other tortfeasors, such as Theurer, whose liability was not at issue at trial.

We begin with an examination of the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). In examining the text and context, we apply relevant rules of construction, such as the rule that words of common meaning are generally assumed to have that common meaning. 317 Or at 611. We also consider, as part of the statute's context, other provisions of the same statute and other statutes relating to the same subject. 317 Or at 611-12. In addition, we consider prior judicial construction of relevant statutory provisions. Mathel v. Josephine County, 319 Or. 235, 239-40, 875 P.2d 455 (1994).

ORS 18.485(3) provides:

"The liability of a defendant who is found to be less than 15 percent at fault for the economic damages awarded the plaintiff shall be several only."

That provision is part of a series of statutory provisions relating to comparative negligence. Beginning with ORS 18.470, the comparative negligence statute provides that contributory negligence does not bar a plaintiff's recovery

"if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought * * *." ORS 18.470.

The statute then provides that, when comparative fault is at issue, a party may request the jury to answer special questions about that issue, specifically:

"(a) The amount of damages to which a party seeking recovery would be entitled, assuming that party not to be at fault;

"(b) The degree of each party's fault expressed as a percentage of the total fault attributable to all parties represented in the action." ORS 18.480.

Finally, the statute establishes specific rules concerning the liability of joint tortfeasors. It provides first that, with respect to noneconomic damages,

"[i]n any civil action arising out of bodily injury, death or property damage, including claims for emotional injury or distress, loss of care, comfort, companionship and society, and loss of consortium, the liability of each defendant for noneconomic damages awarded to plaintiff shall be several only and shall not be joint." ORS 18.485(2).

In each of those provisions, the legislature referred to the comparative fault of parties to a lawsuit, not to "potential parties" or to "potentially liable persons." That language lends substantial support for plaintiff's argument that the fault of nonparties is not to be considered under ORS 18.485(3).

In fact, that is precisely the construction that the Supreme Court has given the parallel language of ORS 18.470 and ORS 18.480. In Mills v. Brown, 303 Or. 223, 735 P.2d 603 (1987), the plaintiff was injured in a three-vehicle automobile accident. He settled with one of the other two drivers and sued the other. When the case was submitted to the jury, it was not permitted to consider the fault of the tortfeasor with whom the plaintiff had settled. Judgment ultimately was entered in favor of the defendant, because of the jury's verdict concerning the proportion of the plaintiff's comparative fault. The plaintiff appealed, arguing that, under ORS 18.470, his fault should have been compared to that of both of the other drivers. The Supreme Court disagreed, holding that ORS 18.470 refers only to actual parties to the lawsuit:

"We interpret that statute as addressing itself only to those persons against whom recovery is sought when the case is submitted to the trier of fact for comparison of fault. The statutory scheme of comparative fault restricts the jury or judge, as the fact-finder, to consideration only of the fault of the parties before the court at the time the case is submitted to the fact-finder for a verdict or decision." 303 Or at 226. (Emphasis supplied.)

In reaching that conclusion, the court looked to the text of ORS 18.470, which refers to "person or persons against whom recovery is sought," as well as the related reference to the comparative fault of "parties" and "all parties represented in the action" in ORS 18.480. In the light of Mills, we are hard pressed to find support for defendant's argument that the trial court erred in failing to require the jury to compare the fault of Theurer and defendant.

Defendant insists that the language of ORS 18.470 and ORS 18.480 is irrelevant, because those provisions do not concern joint and several liability among defendants. For that reason, they also argue that Mills is inapposite. We are unpersuaded.

Defendant's argument is contrary to the method of statutory analysis required by PGE v. Bureau of Labor and Industries, 317 Or at 611-12, which includes an examination of surrounding and related statutes. Moreover, adopting defendant's reasoning leads to the anomalous result of requiring juries to consider the fault of nonparty tortfeasors when determining a plaintiff's comparative fault, but not a defendant's comparative fault. Nothing in the language of ORS 18.485(3) or any other statute suggests that the legislature intended that result when it enacted the comparative fault statute.

Defendant contends that the legislature's purpose in enacting ORS 18.485(3) was, in fact, to cause "a fundamental change in the law of Oregon," designed to give potential "deep pocket" defendants special protection from being targeted by plaintiffs who settle with all other tortfeasors. In support of that argument, defendant refers to portions of the legislative history of ORS 18.485(3).

First, resort to legislative history is not necessary in this case, where the text and the context are dispositive. PGE v. Bureau of Labor and Industries, 317 Or at 611-12. Second, even assuming the text and context are not dispositive, we find nothing in the legislative history that demonstrates that the legislature intended even to address the comparative fault of nonparties, much less establish a rule that the fault of such persons must be taken into account. In that regard, it is noteworthy that, although the Mills decision was issued during the legislative session in which ORS 18.485 was enacted, there is no mention in any of the legislative hearings or debates concerning the court's decision or the issue it decided. Third, even if there were evidence in those hearings or debates that the legislature intended to address that issue, the fact remains that, in enacting ORS 18.485(3), it did not address that issue. Inchoate intentions are not law, only those intentions that are manifested in language that is enacted. If the legislature did not address a matter in such enacted language, we are not free to insert it. ORS 174.010; PGE v. Bureau of Labor and Industries, 317 Or at 611-12. The trial court did not err in dismissing defendant's second affirmative defense.

Affirmed.