Opinion
TC L83-2014; CA A35226; SC S33893
Argued and submitted July 7, 1987
Petition for review dismissed as improvidently allowed August 11, 1987
On review from the Court of Appeals.
Appeal from Circuit Court, Douglas County, Honorable Ronald Poole, Judge. 84 Or. App. 412, 734 P.2d 364 (1987).
Robert J. Guarrasi, Eugene, argued the cause and filed the petition for petitioner on review. With him on the petition were James L. Edmunson and Malagon Moore, Eugene.
William G. Wheatley, Eugene, argued the cause and filed the response to the petition on behalf of the respondent on review. With him on the response were Denise G. Fjordbeck and Jaqua, Wheatley, Gallagher Holland, P.C., Eugene.
Before Peterson, C.J., and Lent, Carson, Jones and Gillette, JJ.
MEMORANDUM OPINION
Petition for review dismissed as improvidently allowed. MEMORANDUM OPINION
We allowed review because this case appeared to involve the question whether a defense against liability for harm caused by noncompliance with a mandatory safety regulation must meet the test of McConnell v. Herron, 240 Or. 486, 489-92, 402 P.2d 726 (1965) (i.e. that the defense would excuse noncompliance also against direct enforcement of the regulation), or the test of Resser v. Boise-Cascade Corporation, 284 Or. 385, 392, 587 P.2d 80 (1978), cited by the Court of Appeals. Examination of the proceedings below now shows that this issue was not properly preserved and presented for review. The petition for review is dismissed as improvidently allowed.