*1 Stehlik, and Barbara Plaintiffs- Charles Stehlik Appellants, Kimberly A Corporation Medicare Part Clark Involuntary-Plaintiffs, B,
and Part
v.
In-
Rhoads,
Paul
Jill
American Standard
Rhoads,
Company
surance
of Wisconsin and Wilson Mu-
Company,
tual Insurance
Defendants-
Respondents.
Supreme Court
17,
argument September
Oral
2001. Decided
No. 99-3326.
June
For the Paul and Jill Company, Rhoads and Wilson Mutual Insurance there by Joseph Conway Voelkner, awas brief J. James O. and Conway, Sheboygan, Olson, Kloet, Gunderson & and argument by Conway. oral James O.
An amicus curiae brief was filed Werner Erich Murray, Peterson, S.C., Scherr and Johnson & Milwau- kee, on behalf of Civil Trial Counsel of Wisconsin. by Lynn
An amicus curiae brief was filed R. Laufen- berg Laufenberg S.C., Law on Offices, Milwaukee, Academy Lawyers. behalf of the of Trial Wisconsin SYKES, S. J. DIANE This case involves an (ATV) presents all-terrain vehicle accident and availability issue of the and effect of the so-called particularly, "helmet defense" Wisconsin. More 1) questions: case raises two central is the "helmet governed by principles defense" the same "seat principles defense," so, belt and if should those be 2) purposes defense; modified for of the helmet can failing require an ATV owner be liable for adult users safety ATV wear helmet? inju- ¶ 2. Charles Stehlik sustained serious head accident. and Jill Rhoads in an ATV rollover Paul ries ATy operating and Stehlik was it with their owned *6 Although safety permission party a their home. at at wearing available, were Stehlik was not one at helmets the time of the accident. Stehlik sued the Rhoads for negligence negligent stipulated, He and entrustment. safety wearing however, that had he "been a helmet at he not have the time of his accident would sustained any injury." serious head special separate ques-
¶ 3. The verdict contained parties' respective negligence the causal tions about regarding regarding accident Stehlik's failure to the and jury the wear a helmet. The concluded that both negligent, respects, and Stehlik were in both Rhoads (70 negligence separately apportioned and the accident (60 negligence" percent/30 percent) and the "helmet percent/40 percent) jury between them. The also con- injuries percent cluded that 90 of Stehlik's were attrib- utable to his failure to wear a helmet. verdict, 4. On motions after the circuit court special questions regarding the verdict
struck negligence safety failure to wear a Rhoads' Stehlik's recovery helmet, and limited Stehlik's to the negligence causing to the Rhoads' attributable is, That the circuit court reduced Stehlik's accident. recovery by percent accident-causing his 30 contribu- tory negligence, percent a further 90 —the jury percentage of his allocated to appealed, a and the failure to wear helmet. Stehlik pursuant appeals court of certified the case to us Wis. (1997-98).1 § Stat 809.61 to the version statutory All further references are 1997-98 noted.
of the Wisconsin Statutes unless otherwise plaintiffs ¶ 5. conclude that the issue of a We safety operat- negligent helmet while failure to wear ing properly governed principles an ATV is plaintiffs negligent applicable to a failure to wear seat Foley City Allis, v. West 113 Wis. 2d belt established (1983). Foley separated 475, 490, N.W.2d of seat belt from accident consideration adopted a "second collision" methodol- injury ogy, adapted from successive tort and enhanced negligence. theories, for the treatment of seat belt Unfortunately, Foley's however, "second colli- analysis consequence entirely has had the sion" (or negli- removing here, helmet seat belt gence) negligence apportionment equation, from the requires damages, because it negligence, to allocate not
when it considers the issue of the *7 negligence. ap- context, In this this seat belt/helmet liability system grounded proach a is inconsistent with comparative responsibility upon the idea of or fault. modify Foley Accordingly, approach for we now purposes of the helmet defense. Separate negligence
¶ 7. consideration of accident negligence pursuant Foley and helmet to remains Helmet is a limitation on rule. recoverable damages, recovery potential not a to under the bar § comparative negligence statute, Wis. Stat. 895.045. aspect applicable
This of remains sound and is here. purposes However, defense, 8. for of the helmet modify Foley's construct,
we "second collision" at least to it for an of the extent calls allocation apportionment rather than an of on the negligence. jury of a helmet in a issue compare helmet plaintiffs to defense case should be asked against helmet as the total corn- negligence defendants, bined rather them treat- ing comparison as an allocation or division of damages, in a or successive tort or enhanced injury case. Finally, public
¶ 9. we conclude that for reasons policy, failing an owner cannot held ATV be liable require adult users of the ATV to wear an available jury helmet. The in this case should not have been negligent asked to determine whether the Rhoads were failing require safety helmet, Stehlik to wear engage separate comparison negli- in a of helmet gence as between Stehlik and the Rhoads. The circuit properly questions court struck those from the verdict this case.
¶ 10. Because the verdict in this case was based Foley, upon purposes which we have now modified for defense, the helmet we reverse and remand for a new liability only. trial on the issue of
HH September 1994, On Paul and Jill delivery, signed Rhoads took of a new ATV Paul Rhoads warranty registration warnings that contained dangers including oper- ATVs, various associated with ating passengers, operating the vehicle with without a safety gear, protective operating helmet other with- qualified training, operating out under the influ- ATV operating allowing alcohol, incline, ence of on an operate having others to read the ATV without training. Warnings *8 owner's manual or received of some dangers posted of these were also on stickers over the guards, guards, rear front wheel the back wheel bumper, and on the of the back seat ATV day, party
¶ 12. The next the Rhoads had a at They permitted guests operate their home. their hill, an trail on a dark, after on unlit with ATV wearing passengers, instructions, without without safety serving helmets, and after them alco- available beverages. holic guest
¶ Stehlik, a had 13. Charles who been drinking prior during to and the Rhoads' alcohol both party,2 a decided to take the ATV for ride. Stehlik was part-time an truck driver and en- over-the-road law Washington County officer for the forcement Sheriffs Slinger Department Department. Police In and the employment-related driving experience, addition to his racing experience had as a modified stock car Stehlik motorcycles mopeds. racer and also drove safety parties stipulated hel- that the Rhoads owned mets, and the found that a helmet in fact was Nevertheless, available for Stehlik's use. Stehlik did not driving a helmet while the Rhoads' ATV wear Initially operated alone, Stehlik ATV gave passengers including, ride, but later several a at four-year-old accident, the time of the child.3 With driving sitting and the child in front of Stehlik aboard rolled of a hill. him, the ATV over on side Stehlik against his head a concrete struck wall sustained injuries. serious head trial, 15. Stehlik sued the Rhoads. Prior'to
parties following stipulation: entered into the "The stipulated parties that had have Mr. Stehlik been wear- ing safety helmet at the time of his accident he would
2 Stehlik's blood-alcohol concentration was later deter percent. mined to be .123 wearing The child was a helmet at the time of the
accident. *9 any injury. parties serious head The not have sustained stipulated have also that Paul and Jill Rhoads owned safety helmets." such jury
¶ The found the Rhoads and Stehlik both jury causally negligent respect with to the accident. The negligence apportioned percent of the accident to the 70 jury percent The Rhoads and 30 to Stehlik. also deter- safety mined that a helmet was available for Stehlik's negli- use, and that both the Rhoads and Stehlik were gent respect with to Stehlik's failure to wear a helmet. jury apportioned percent negli- The 60 "helmet this gence" percent to the Rhoads and 40 to Stehlik. The jury percent determined Stehlik's were attributable to his failure to wear a helmet. The damages $853,277.4 fixed Stehlik's at Washington verdict, 17. On motions after County Court, Circuit the Honorable Annette K. Zie- gler, passive concluded that helmet was subject comparative not to a pertaining analysis, special questions and so the verdict negligence regarding to the Rhoads' Stehlik's failure to safety a helmet should not have been submitted to wear jury. questions The those from the court struck damages special verdict and reduced Stehlik's (the percent to his failure to amount attributable wear (the helmet), percent a further 30 amount of accident), contributory negligence causing the his damages resulting $54,198. award of in an ultimate appealed, appeals certified the and the court of Stehlik case to us. $774,257 subtracting after award came to
subrogated expense medical claim.
II
18. We review the circuit court's decision regard
*10
the
motions de novo because it
ing
postverdict
presents
Insurance,
Danner v.
law. See
Auto-Owners
of
question
90,
41,
49, 65,
159,
2001
245 Wis. 2d
629 N.W.2d
WI
moved,
168. The Rhoads
to Wis. Stat.
pursuant
an
805.14(5),
§
order
verdict
striking
special
liability
their
for helmet
questions regarding
negligence,
they did not contend that
the evidence was
although
See Wis. Stat.
insufficient
to sustain the
answers.
805.14(5) (c). Rather,
they
§
that as a matter of
argued
law, they could not be liable for the helmet
of
negligence
Therefore,
another.
while the
motions
postverdict
were
not styled as motions for judgment notwithstanding
verdict
(JNOV),
review,
de novo standard of
appli
See
motions,
cable to decisions on
here.
JNOV
applies
DNR,
Herro v.
407, 413,
67
2dWis.
III 19. This case was submitted to the on jury negligence negligent entrustment theories.5 We note that the initially jury was instructed on improperly negligent theory entrustment The cir- liability. cuit court used the instruction pattern jury applicable theory negligence of the case was submitted to the jury by way regarding of the standard pattern instructions property owner. See Wis JI&emdash;Civil 1005, 8020. § negligent entrustment cases under 308 of the Re adopted by statement, which was this court Bankert Co., 469, v. Threshermen's Mutual Ins. 2d Wis. (1983). 1014;
329 N.W.2d150 See Wis JI —Civil Restate (Second) (1965). § ment of Torts 308 The court of § appeals applicable however, held, has that 308 is not to self-inflicted such as Stehlik's. See Erickson Co., 82, 95, v. Prudential Ins. 166 Wis. 2d 479 N.W.2d (Ct. 1991). App. (Second) ¶ 20. Section 308 of the Restatement provides: Torts Permitting Improper Things
§ 308 or Persons Use Engage in Activities permit person thing
It is a third to use a engage activity in an or to which is under the control of actor, if the actor knows should know such person likely thing intends or is to use the or to conduct *11 activity in himself in such a manner as to create an harm to others. unreasonable risk of (Second) added). § (emphasis Restatement Torts 308 § appeals Erickson, 308, In court held that its applies only person negligently terms, when the who is injures activity else, entrusted with an item or someone Erickson, Here, however, not himself. 166 2d at 95. Wis. jury pattern circuit court modified the instruction § applicable 308, 1014, to to Wis JI —Civil conclude with phrase of harm to himself' in- "unreasonable risk contrary of harm others," stead "unreasonable risk to to Erickson. theory negligent
¶ 21. The entrustment at issue § appears in this case in 390 of the Restatement:
§ 390 Chattel to Incom- for Use Person Known be petent directly through person
One who a third supplies supplier chattel for the of another whom the knows use likely youth, or has reason to know to be because of his otherwise, it in a manner inexperience, or to use involving physical risk of harm to himself unreasonable supplier expect and others who the should to share in use, endangered by subject liability or be to its is resulting them. physical harm (Second) (1965). § Restatement of Torts 390 This sec- adopted by tion of the Restatement was the court of appeals Halverson, 530, in Halverson v. 2d 523, 197Wis. (Ct. 1995). App. However, there no N.W.2d is § pattern jury instruction for use in 390 cases. negligent
¶ 22. The two theories of entrustment commentary § are related but not identical. The to 390 explains "[t]he rule stated in this Section is § special application of the rule stated in .... This supplying person Section deals with of a chattel to a (Second) incompetent safely to use it . . . ."Restatement § 390, of Torts cmt. b. Had the been instructed § might on it have concluded that because Stehlik professional part-time was a driver and law enforce- experienced racing, ment officer in stock car motor- cycle, moped driving, incompetent he was not safely use ATV and therefore the Rhoads were not negligent entrusting hand, him with it. On the other jury might have concluded that the Rhoads were negligent entrusting their ATV to Stehlik because he drinking incompetent had been and was therefore safely. use it §
¶ 23. A 308 claim a broader, bit and can be any asserted time the circumstances are such that the person defendant knew or should have known that the *12 entrusting likely to whom he is an item is to use it in a way that an creates unreasonable risk of harm to § others. But 308 has never been extended to cases such involving
as this one
harm
self-inflicted
the one to
allegedly negligently
whom an item is
entrusted.
In
specifically
fact,
above,
as noted
Erickson
held that it
apply
Erickson,
does not
to such cases.
made a difference on the case, facts of this and no one appeal. raised the issue on We it address because we are remanding liability emphasize for a retrial, and to that this case should not be construed as a sub silentio overruling § an Erickson or extension of 308 to cases involving injuries. self-inflicted In addition, this discus hearing analysis liability sion has on our of an ATV owner for an adult ATV user's failure to wear an available helmet. See Part V. infra
IV parties dispute ¶ 25. The whether, and to what principles applicable extent, the to the so-called "seat govern belt defense" also the "helmet defense" asserted recognized here. seat belt defense was first Braun, Bentzler v. 362, 385, 34 Wis. 2d 149 N.W.2d626 (1967). Bentzler, In this court concluded that duty ordinary
common law to exercise care for one's safety contemplated own the use of available seat belts protect against injury serious in an automobile accident. Id. The court reached this conclusion "inde- pendent any statutory id., mandate," because of the knowledge, supported by common evidence, statistical injury: that seat belts save lives and reduce apparent While it is these statistics cannot be predict used to gravity the extent or result- *13 involving per- accidents ing particular from automobile are not compared to those who using seat belts as sons them, that, average, persons using it obvious on is and, if injury likely are to sustain using seat belts less On the likely are to be less serious. injured, the matter of common and as a experience, basis of this either knows knowledge, occupant an of an automobile safety produced factor the additional or should know of riding in a A vehicle person the use of seat belts. exercising duty of such by another is under driven exercise ordinarily person would prudent care as an injury to himself. to avoid under similar circumstances Id. at 386-87. of the seat belt de- Bentzler analysis 27. to the helmet applies logically conceptually
fense the absence Significantly, in this case. defense asserted was not decisive seat belt use mandating of a statute Bentzler; mandating nor the absence of a statute In this riders decisive here.6 helmet use adult ATV Bentzler, wearing of context, safety as in benefits vehicle a non-enclosed riding helmet while operating knowledge, an are a matter of common such as ATV evidence.7 by statistical supported age required 18 are to wear helmets when Children under 23.33(3g)(a). § riding an ATV See Wis. Stat. Safety CPSP Product Commission See U.S. Consumer Wisconsin, #540, State of De http://www.cpsc.gov;
Document Resources, and Statis Reporting Accident partment of Natural Briefs, tics, Motorcycle http://www.dnr.state.wi.us; Wisconsin 1994); and, (February Department U.S. Safety, LRB-9L-WB-2 Adm., Safety Motorcycle Traffic Highway Nat'l Transportation, Laws, http://www.nhsta.dot.gov. Helmet Use are, all, after ATVs motorized ve open-air, hicles capable reaching high moderate to speeds, and are, by intended to be on all design, operated types off-road terrain. See B. Gregory Rodgers, All-Terrain *14 and Injury Vehicle Risks Regulation, 25 Effects (1993). Accident & Prevention Analysis 335-346 risks associated ATVs are with well-known. See James A C. Helmkamp, Comparison State-Specific All- Rates, 1990-1999, Terrain Related Death Vehicle 91 (2001). Am. J. Pub. Health 1792-1795 Under these circumstances, an ordinarily prudent person knows or reasonably should know that a wearing safety helmet while or an operating riding protects against ATV head serious injury. Accordingly, consistent with the Bentzler, rationale of we conclude that common law duty of care for ordinary safety one’s own can encom safety use of a helmet while pass operating riding an ATV.8
8
in
jurisdictions
Courts
other
are
on the
split
issue of the
e.g,,
allowing
helmet defense. See
cases
the helmet defense:
(1st
Rodgers
Co.,
v. American Honda
46
1
Motor
F.3d
Cir.
1995) (holding
plaintiff
that
could not recover when his
to wear a
all
essentially
injuries);
failure
helmet caused
of his
(S.D.
1995)
Dailey
Co.,
v. Honda
882 F.Supp.
Motor
826
Ind.
(finding that
one's failure wear a helmet could be
in
relevant
(Ariz.
calculating damages);
Cheney,
v.
Foley, Wis. 387). here, like the seat recognized The helmet defense Bentzler, generally ques- defense recognized belt for the jury.9 tion defense on liabil- The effect of the seat belt after Bentzler years was addressed
ity
"seat belt
There,
in
this court
Foley.
distinguished
and
and passive negligence
from active
negligence"
negli-
of seat belt
consideration
separated
jury's
estab-
negligence,
comparison
from the basic
gence
helmet,
showing
plaintiff
that the
failed to wear
a
evidence
wear
(Md.
Frush,
excluded);
v.
ing riding or a do not address an ATV or like vehicle. We speed vehicle such as of helmet use other contexts. the treatment it lishing instead as on limitation recoverable dam- ages. 2d at Foley, Wis. 484-90. described distinction between ac-
tive, and passive, seat belt this way:
This court has used "passive the term negligence" to describe the conduct of a passenger who fails use ordinary care for his or her safety own where the passenger's conduct is found to be a cause of his or her injury but not of the collision. Active de- person's scribes a failing conduct in ordinary use care when conduct is a cause of the collision. A passen- ger can be found actively passively both negligent, depending on the circumstances. Theisen v. Milwaukee Ins, Co., Automobile Mut. 91, 105, 18 Wis. 2d (1962). N.W.2d 140
It is true that failure to use available seat belts in (and case) ordinary this case in the is not a cause collision would thus appear to fall within category "passive negligence," but we decline to label seat-belt "passive" negligence because the seat-belt defense doctrine rests on dif- considerations ferent from in "passive negligence." those involved
In the usual passive negligence, passen- case of ger prevented injury could have completely by taking e.g. refusing some action: particular to ride with that time, particular warning driver at that of a hazard. contrast, In passenger who wears a seat belt can not usually injury. avoid all Since failure to wear belts seat generally injuries, damage causes incremental for these injuries incremental separately can be treated pur- poses calculating damages. recoverable In contrast caused passive negligence are identical *16 negligence caused the active in the same accident, damages negligence and the due to passive separated easily can not be purposes calculating damages. recoverable 484-85.
Id. at a seat belt defense analogized then torts: successive involving case to one passive between To understand the distinction negligence, help- it is and seat-belt negligence [sic] involving seat- think of the automobile accident ful to but two. involving not one incident negligence as belt collision, in this case The first incident is actual incident, which hitting each other. second two cars not occur without in motion the first would is set it, of the vehicle hits occupant occurs when the relevant Wearing seat belts is interior.... vehicle's above, and, as discussed only to the second collision damages by the first aggravate of the caused may some may also cause seat belts collision. Failure wear damages can be injuries. Negligence and additional incidents. apportioned between two negligence passive Since seat-belt determine whether seat- distinguishable, we must are differently pas- from negligence should be treated belt rule, there is a negligence. general As a when sive or more logical damages to allocate between two basis among parties, attempt courts incidents and various be allocated Accordingly, .... since can do so collision and the in a seat-belt defense case between the negligence, attempt to do so. Unlike seat-belt we should court, types the two the circuit which combined fair and administrable negligence, we conclude that a under- taking public policy into account the procedure, principles defense and the of com- lying the seat-belt 895.045, in sec. is to parative enunciated damages by the usual plaintiffs provable calculate a regard to the seat-belt without rules de- and then take into account seat-belt defense damages by by decreasing the fense recoverable negligence. causal seat-belt percentage (citations omitted). Id. at 485-87 *17 33. Foley's jury's the con- analysis separating ¶ — sideration a plaintiffs of seat belt from its negligence of consideration accident negligence from —"borrows the used in apportionment two traditional technique tort doctrines: avoidable consequences mitigation and of Id. at damages." 487. seat belt Establishing negli- gence as a on separate limitation damages recoverable "treat the in [s] and defendant such that plaintiff way the recovers plaintiff from the defendant for damages the injuries caused, the defendant but... the defendant is not held for liable incremental the and plaintiff could should have prevented by wearing an available seat belt." Id. at 489. Foley the prescribed following general pro-
cedure for in a judge the seat belt case: defense (1) negligence Determine the party causal of each as to (2)
the of the apply comparative collision two cars ... negligence principles liability to eliminate from a de- negligence causing fendant whose the collision is less contributory than negligence causing the of a plaintiff (3) ...; using the trier of collision fact's calculation damages, reduce the amount of each plaintiffs damages from the liable the percentage defendant of negligence plaintiff causing attributed to the (4) ...; collision determine whether the fail- ure to use an available seat belt was and a injury, percentage cause of and if so what of total negligence causing injury was due to failure to (5) ..; wear the belt. plaintiffs damages seat reduce the (3) step percentage calculated of (4) the plaintiff step attributed to under for failure to wear an causing injury. available seat belt for 2d Foley, 113 Wis. at 490. 35. The fourth fifth in the steps process
appear to an belt require apportionment negli- seat gence as total against and a injury-causing negligence, damages. However, if
corresponding reduction applying tort or successive a modified is understood injury analysis, was meant then what incremental an apportionment all, but at not an among injuries or allocation or division (the to wear and the failure accident distinct causes *18 belt), accompanying in the reduction an and seat recovery. plaintiffs Foley language end of the
¶ at the Indeed, 36. having opinion established "the refers to the court damages apportioning proper in seat-belt method for added). (emphasis The at 496 cases." Id. Jury Instruction Civil also invited the Wisconsin court requires the an instruction that to draft Committee damages" "percentage attribut- of total fix to at plaintiffs belt. Id. failure to wear seat able to added). (emphasis 495 Foley step Accordingly, in the
¶ the fourth 37. ordinarily process of whether a determination involves negligence, plaintiffs a seat belt was failure wear injuries plaintiffs percentage total of the so, if what and damages to wear to the failure attributable were or step in the a reduction calls for The fifth seat belt. recovery by percentage. JI— plaintiffs See Wis (successive torts), (enhancedinjuries). 1723 1722A Civil applied circuit court understood This is how the Foley procedure here.10 legislature appears to have how the 38. It is also years methodology. 1987, In four
understood mandating legislature Foley, enacted a law after percent cap on included a 15 use, seat belt "Assuming the total Question No. 10 was: Special Verdict 100%, portion what Stehlik to be injuries of Charles jury's a helmet?" by the failure to wear injuries caused was percent. answer: 90
amount which a by recovery can be reduced for failure to wear a seat belt under the Foley analysis: 347.48(2m)
§ Required use. (g) Evidence compliance or comply failure to with (c) (d) par. (b), or [requiring seat belt use] is admissible any injuries civil action for personal or property damage resulting from the or operation use of a motor Notwithstanding vehicle. s. 895.045 comparative [the negligence statute], injuries with respect damages or determined to have been caused a failure comply (c) par. (b), (d), with or such a failure shall not reduce the recovery those more than 15%. paragraph This does not affect the determination of causal in the action. §
Wis. Stat. 347.48(2m)(g). In Holcka, Gaertner v. Wis. 2d *19 (1998), N.W.2d 271 this court analyzed the effect of the statutory as change follows:
By amending 347.48, § Wis. Stat. legislature the explicitly adopted our interpretation of the seat belt Significantly, defense. legislature sought pre- to Foley's attempt serve prevent defendants from at- taining a windfall indicating that paragraph "this does not affect the determination of causal in the § action." See Wis. 347.48(2m)(g). Stat. As it is relevant opinion, to this the legislature modified the common law ... to limit to the potential 15% reduction in plaintiffs' damages. recoverable
Gaertner,
¶ successive tort theory of seat belt negligence analogous to enhanced injury case law that has in developed product
499 Toyota generally liability Mo Sumnicht v. context. See 352-60, U.S.A, Inc., 338, Sales, 121 Wis. 2d tor (1984); Co., 2d Deere 151 Wis. Farrell v. John N.W.2d (Ct. 1989); App. Wis JI —Civil 45, 64-67, 443 N.W.2d50 injury Enhanced JI —Civil 1722A. 1723; see also Wis upon tort or successive a "second collision" cases draw fairly responsibility analysis attempt in an allocate proof plaintiffs of distinct a where there is for injury-producing converging same acci causes (2000). (Third) § of Torts 26 dent. See Restatement Applying tort or "sec- a modified successive may theory single accident case make ond to a collision" or of it involves the allocation division sense when demonstrably injuries damages among distinct or might respon- be causes for which different defendants applying of a seat belt But it to issue sible. plaintiff negligence operates deprive the or helmet jury comparison his of the fault associated with (or helmet) against here, a failure to wear a seat belt responsibility to cause total fault or that combined damages. the whole of his aspect criticized as 42. This has been consistency," generating "problems of fairness and culpability with seat belt that the relative associated weighed against culpability the relative nonuse is never McChrys accident-causing K. tortfeasor. Michael Negligence: tal, Belt The Ambivalent Wisconsin Seat (1985). Highly Marq. Rules, 542, L. Rev. accident-causing negligence might aggravated in a substantially outweigh given asso case or helmet.11 ciated with the failure to wear seat belt *20 11 McChrystal gives example of "a drunk Professor injures a driving legal speed [who] at defendant twice 500 Foley, apportion But under does not when it considers the seat belt or defense, helmet it damages, substantially allocates or divides which is a inquiry. different Bradley
¶ 43. As Justice noted in her concurrence attempting partition Gaertner, in negligence away "in the seat belt primary negli-
from the tortfeasor's gence, appears Foley may it that the court have also partitioned primary negligence away tortfeasor's determining responsi- from the seat belt bility injuries. for enhanced court seems to have immunized initial tortfeasors from the full conse- quences negligence." Gaertner, their 219 Wis. 2d at (Bradley, concurring.) J., 462 is, That "a tortfeasor whose conduct caused the initial collision and whose negligent may conduct he a substantial causal factor of any the victim's enhanced is not credited with responsibility injuries." for those Id. at 461. In the legislature context of the defense, seat belt has potential practical concep- minimized the effect of this problem by imposing statutory percent cap tual on plaintiffs recovery the amount which a can be reduced for failure to wear a seat belt. applied
¶ 44. conclude that, We to the helmet Foley's conceptualiza- defense, modified successive tort tion, which in this situation call would for an allocation injury plaintiff regardless of helmet or to the culpability of total relative fault, is inconsistent with liability system upon comparative based the idea of responsibility. negli- But for the defendants' accident plaintiff who failed to buckle moving his seat belt while his car from the street front of garage." his house into his Michael K. McChrystal, Negligence: Seat Belt The Ambivalent Wisconsin (1985). Rules, Marq. L. Rev. *21 any injury
gence, plaintiff the would not have sustained injury" (assuming, all, "helmet or otherwise at whether negligence plaintiffs accident course, of that the own defendants'). reason, For this the does not exceed the plaintiffs amount which the determination of the recovery reduced because of his own helmet should be negligence of the should take the accident purposes applying For defendants into consideration. adopt defense, we decline to to the helmet concept opinion's from the modified successive tort methodology.12 overall jury The in a helmet defense case should 45. negligence separately apportion accident
determine and Only subject negligence. to helmet the former is from negligence, § helmet like 895.045, Stat. because Wis. negligence, damages, is a limitation on not seat belt negli- recovery. potential However, to the helmet bar jury question gence comparison should ask the to against compare helmet as rather, defendants, total combined treating comparison divi- than as an allocation or damages, or as a successive tort or sion injury enhanced case. jury is, That in a helmet defense case initially to determine
such as this should
be asked
negligent
respect
parties
whether each of the
was
with
party's
accident,
so,
and if whether each
"accident
to the
damage
negligence"
injury
a cause of
was
defense,
alter the
belt
which
This is not intended to
seat
Allis,
governed by Foley City
v.
West
113 Wis.
continues
be
(1983),
modified
2d
plaintiff. apportion The should then the accident negligence among parties negligent found to be with assuming respect negli- accident, to the total accident gence percent. plaintiffs recovery The be will be § depending reduced or barred under Wis. Stat. 895.045 upon comparison. the result of this should *22 plaintiffs if then be asked a helmet was available for the plaintiff negligent if use, and, so, whether the was failing jury If to wear a helmet. the answers these questions in affirmative, the it should then decide negligence" plaintiffs the "helmet whether was cause damages. jury If of his or her or the finds the plaintiff causally negligent respect to helmet non- with compare plaintiffs use, it should then be asked to the negligence against negli- the helmet as total combined gence "Assuming defendants, of the as follows: the total plaintiffs negligence of the helmet and the combined defendant(s) negligence per- 100%, to be what 1) centage you plaintiffs do to: the helmet attribute 2) negligence negligence; and the combined defendant(s)?"13 subject comparison This last is not § recovery plaintiffs bar to if the Wis. Stat. 895.045 defendant(s)' negligence percentage helmet exceeds the illustrate, plaintiffs damages to be To assume $100,000, negligence jury's and the answer to the accident percent neg attributes 70 of accident apportionment question ligence percent plaintiff. to the defendants and 30 to the The damages percent reduced his 30 contribu plaintiffs would be $70,000. tory negligence, accident Assume further comparing the jury's apportionment question answer to the against negligence plaintiffs helmet as the combined helmet percent plaintiffs of the defendants attributes 20 to the negligence of the percent and 80 to the combined recovery would be reduced plaintiffs defendants. The (20 $56,000 $70,000 $14,000, percent, percent further 20 $70,000 $56,000). recovery leaves a subtracted from negligence percentage. Foley, Under seat combined negligence operates only to reduce dam- belt/helmet recovery. ages, not bar recognize comparison that this second 47. We judgment by
question value involves a more abstract jury damages, than an allocation or division of does conceptualize compartmentalize. which is easier to juries upon are called to make these sorts of inexact But they judgments compare in the value when jury can devised that instance, first instructions be jurors' compari- attention on the nature of the focus son. purpose comparison
¶ 48. The of the second is to percentage by plaintiffs determine the ery which the recov- fairness, of his helmet should, be reduced because separate negligence, or accident not to divide damages. from helmet can be reminded that compare culpability responsi- its task is to relative bility harm, for total helmet between *23 and the of the defen- combined Removing the successive tort construct means dants. comparison longer jury that this second no involves a categories injury determination of discrete of divisible damage, responsibility comparison but a or fault.14 special essentially
¶ in 49. The verdict this case damages approach, followed the allocation of purposes modified for which we have now of the helmet essentially five-part This is consistent with the method 34, ology adopted Foley, in 2d at see infra Wis. minus in language Foley opinion elsewhere that characterizes approach involving a or apportionment division damages. Accordingly,
defense. we reverse remand the case liability only. for a retrial on the issue of argues apply Foley 50. Stehlik also that if we to apply statutory the percent damages defense, helmet we should cap reduction contained in the seat negligence question. belt statute to the helmet We By only applies decline to so. terms, do its the statute the failure to wear a automobile, seat belt an not the judicially failure to import awear helmet on an ATV Wecannot statutory cap category for use in a of cases to explicitly apply. it which does not may good public policy, ¶ 51. It be because of the conceptual similarities between seat belt negligence, apply and ATV helmet the same cap reduction to both that, kinds cases. But ulti- mately, question legislature. is a for the We conclude impose percentage that the issue of whether to a fixed plaintiffs recovery limitation on the amount which may be reduced for his or her failure to wear a helmet legislature. on an ATV should he left to the V ¶ 52. The final issue this case concerns the propriety special questions separately verdict inquiring respective negligence about the Rhoads' safety Stehlik's failure to wear a helmet. The Rhoads argue duty require competent that there is no adult precautions safety, to take wearing for his or her own such as correctly points
a helmet on an Stehlik ATV out, however, that in Wisconsin, common limita- law *24 liability tions on are determined not reference to the duty, public policy. a absence of but a matter as of See
505
R.,
¶
2d
68,
24,
2000
235 Wis.
Gritzner v. Michael
WI
"
society
held,
are
All members of
611 N.W.2d906.
very
ordinary
in all
least, to a
of
care
at the
standard
(citing
¶
Senecal,
v.
activities.'" Id. at
Rockweit
(1995)).
409, 419,
2d
¶ concluded, based 53. We have ordinary Bentzler, the of care for one's standard wearing safety encompass requirement of can the own a helmet ordinary on an Does the standard of while ATV respon- safety include the
care for the of others sibility requiring else to wear a helmet on an someone policy question public consider- ATV? "The of whether preclude liability question and ations is a of law" is following application determined factors: (2) (1) injury negligence, too remote from the the is injury wholly proportion too out of to the tortfeasor's (3) highly in it too ex- culpability, retrospect appears traordinary that the should have resulted (4) harm, allowing recovery place would too unrea- (5) tortfeasor, allowing on the recov- sonable burden way ery likely open be too for fraudulent would (6) claims, allowing recovery would enter a field just stopping point. that has no sensible or 426). (citing Rockweit, 2d Id. at 197 Wis. at second, fourth, conclude that We weigh heavily preclud- favor of sixth these factors policy, ing liability public here. As matter of culpable normal adult user of an is far more than ATV personal, volun- the ATV owner when it comes to the safety tary helmet decision not to wear an available operating Where, here, the ATV ATV while safety the ATV user owners made simply helmets available but degree culpability one, chose not to wear liability. disproportionate impose is too *25 liability impose ¶ addition, to on an ATV In 55. a helmet an adult rider's failure to wear for owner requir- places owner, on the unreasonable burden too visually essentially, ing, monitor its that the ATV owner helmet use all riders. at all times to ensure use liability Finally, impose ¶ these cir- to under 56. a field negligence has no sensible or would enter that cumstances just point. stopping with an associated safety forego an the use of available adult's decision to assigned or a helmet cannot be such as a seat belt device of the car or the else, such as the driver to someone liability Imposing helmet for the owner of the ATV facts of this case would of another on the negligent essentially theories entrustment extend beyond § § of the Restatement of both 308 and 390 shifting responsibility for self-inflicted bounds, their injured ability person had the harm simple against by opportunity protect himself safety expedient using Erick- device. See an available son, 2d at 93-95. 166 Wis. Foley approach
¶ as 57. Under the now-modified neg- applicable defense, to the helmet Stehlik's helmet compared against ligence the total combined will be (that neg- is, the Rhoads' of the defendants negligent ligence property en- and under owners arriving appro- theory) purposes at the for trustment damages. public priate But in his recoverable reduction liability imposing preclude policy on an considerations to wear for the failure of an adult ATV user ATV owner safety helmet. Accordingly, that an ATV we conclude failing require an adult for owner cannot be liable safety helmet. The to wear an available user of the ATV (although correctly on other court concluded circuit grounds) not have been asked that the should negligent determine whether the Rhoads were with respect to Stehlik's failure to wear a helmet, or to separately apportion helmet between the parties, properly questions struck those from the special verdict. Foley methodology 59. Our modification of the purposes requires of the helmet defense a new trial *26 liability only.15Accordingly,
on the issue of the matter is proceedings reversed and remanded for further consis- opinion: tent with this
By judgment Washington the Court.—The of the County Circuit Court is reversed and cause remanded proceedings with directions for further consistent with opinion. this
¶ 60. SHIRLEY S. ABRAHAMSON, CHIEF JUS- (concurring). separately express my TICE I write majority opinion's concerns about the modification of analysis Foley City the Allis, v. West 113 Wis. 2d (1983). 475, 335 N.W.2d824 I have concerns about how analysis practical the new will work as a matter. The dissenting opinion points up problems some of the with analysis majority opinion the new set forth in the but recognize modifying, fails to the merits of in common Foley approach problems tradition, law the as with the Foley approach light. have come to majority
¶ opinion's analysis 61. The has two steps. step Foley analysis, Like the first found in the the majority opinion jury directs a to first determine each party's respective accident-causing negligence for the purposes comparative negligence of Wisconsin's law, § Wis. Stat. 895.045.
15We do not address the further issue raised in this appeal regarding the "five-sixths rule" violation under Wis. 805.09(2). § Stat. step, majority opinion
¶ the In the second 62. analysis by instructing jury Foley departs the from against compare plaintiffs helmet defendants. In this of the total combined way, culpability associated with the failure the relative relative, against culpa- weighed a helmet is to wear bility caused the accident.1 of the tortfeasor who step approach The under the new is 63. second parties comparison of the not a injuries, causing rather an divisible but neg- judgment" comparing party's each value "abstract majority ligence generally.2 under the The is asked responsibility opinion the total harm.3 to allocate approach good point new The dissent makes apply. conceptually The to understand and to is difficult acknowledges point.4 majority opinion this majority step, opinion In the second Foley analysis: attempts to correct a flaw the analysis majority persuaded that under may damages, plaintiffs relating not to the division *27 1Majority op. at 8.¶
2 n.13, Majority op. at 46 47. ¶ ¶ majority the Foley, found in step Unlike the second divide longer jury instructs to step no opinion's second total determining plaintiffs of the damages by percentage what failure to wear damages plaintiffs are attributable to the Instead, compare plaintiffs the jury the is instructed to helmet. negligence of the negligence against the total combined helmet defendants.
3 that the majority opinion states Majority op. at 48. ¶ helmet plaintiffs the compare be able "to fact-finder should negligence of the against the total combined negligence as alloca treating comparison the as an defendants, rather than damages." Majority op. at 8. injuries of tion or division 4Majority at op.
509 injury by recover for substantial self-inflicted their failure to wear a helmet when for a but defendant's causing plain- substantial the accident a injured agree tiff would not have been at all.51 that this problem Foley approach exists in the as it has been applied.6 present subject
¶ 65. The case falls within the generally apportionment described tort treatises' as liability damages of divisible, when are is, damages can be divided causation.7 The are present expert testimony divisible in the case when part offered to show that a of the total injuries part by was caused the accident and a principle failure to wear a A helmet. fundamental of apportionment liability law and is that relationship when no causal exists an between actor's injuries, conduct and the victim's then the actor is not injuries.8 Foley analysis, Thus, liable under the a defendant would not be held liable for incremental 5 Majority 42-44. See also Gaertner 6, v. Hol op. at ¶ ¶¶ cka, (1998) 436, 462, 219 Wis. 2d 580 (Bradley, J., N.W.2d 271 See also Michael K. Seat Belt Negli concurring). McChrystal, gence: Rules, The Ambivalent Wisconsin Marq. 539, 68 L. Rev. (1985).
6 See majority note 14 of the opinion. For a case that appears recognize same analysis, limitations adopts but approach an different adopted by from that see Waterson v. General Corp., majority opinion, Motors (N.J. 1988). A.2d 374-75 Waterson treats divisible. I have set forth appendix in an opinion this verdict questions given under Waterson and special instructions explain approach. this (Third) Torts, Restatement Apportionment Liabil ity § 26 (2000). (Second) *28 Restatement (1965). Torts § 430 of
510 injuries plaintiff have been and that could a suffered by wearing prevented a helmet.9 have been should majority opinion plaintiffs ¶ treats the 66. The majority injuries The effect of the indivisible. liability analysis impose opinion's on a defendant is to part negligently of the causes an accident some who injuries plaintiff herself inflicted on himself or a failing to wear a helmet. Foley Despite in the
¶ modifications made 67. the majority jury analysis by opinion, a will nonetheless the injury plaintiff to a resulted about what hear evidence causing an accident from a defendant's injury plaintiff from the a resulted what proof plaintiffs is admis- to wear a helmet. This failure jury Foley analysis, because sible, as it is under majority analysis opinion's whether under the is asked failing negligent plaintiff a helmet a wear was plaintiffs was a cause of whether that injury.10 jury relative to determine the The is also asked culpabil- against culpability plaintiff the relative ity the accident. of the tortfeasor who caused jury hear evidence that The will thus 68. injury plaintiffs injury is, divisible, that will hear evidence causation. can be divided arising injury plaintiff from the accident to a about arising injury plaintiff of from the lack to the and the responsibility "apportionment Thus, helmet. (like terminology majority opinion's fault," to use the apportionment causal under depend analysis), factual determina- on continues relationship be- and the about divisible tions 489, 335 N.W.2d Allis, 2d Foley City v. West Wis. (1983). 10Majority at op. *29 plaintiff
tween the aof and the of causing plaintiffs injuries. a defendant in Although jury ¶ 69. will be asked in the second step majority opinion's analysis to undertake a comparison responsibility, more abstract rather than comparison a more causing "concrete" damages, divisible damages the factual evidence of the divisible undoubtedly significantly
will influence a attempts majority as it opinion's to undertake the "more analysis. abstract" majority 70. I am concerned whether
opinion's approach by juries, will be understood will accomplish goal, substantially change its or will legal attorneys framework that the and courts of this using past state have been for the two decades. But the attempt step right to correct the flaw is a in the direction. separately. 71. For these reasons, I write
Appendix Corp. Jersey Waterson Jury v. General Motors —New Damages Injuries Instruction: 6.11 —Personal Damages J. as Affected Nonuse of Seat Belt
Including (6/89) Ultimate Outcome See footnote you As I told earlier, See 2 defendant's footnote plaintiff wearing contention that was not a seat belt is deciding not causing relevant in who is at fault for may meaningful determining accident. But it be money plaintiff may any injuries amount of recover for you you find received. I would now like to tell he/she how this works.
In order to succeed on this reduction of prove by greater issue, weight defendant must the evidence that: using at seat belt not an available Plaintiff was
1. See the accident. time of footnote using negligent in that seat not 2. Plaintiff was of the accident. at the time belt greater injuries or more made Plaintiffs were using In other belt. not seat because was
severe he/she could have been or all of words, some using a prevented been seat if had or avoided he/she *30 4 See belt. footnote you you how talk with about like now to
I would proven deciding each of go has if defendant about may you. points of note that each You three these points sheet as on the verdict set out these is (). questions you point defen- decide is whether must
The first using plaintiff not an available was has shown that dant accident. the time of the seat belt at point that show is defendant must that second using negligent plaintiff the seat belt. for not was type Negligence failure to is the in this of situation safety protec- degree and of care for one's own use the reasonably prudent person in the would use tion that a reasonably prudent a circumstances or similar same person nor person. the most cautious I mean neither unusually rather one of reasonable bold, but who is one prudence. vigilance, caution requires Jersey driver properly See law New footnote passengers]
[and a of a car to wear front seat is in adjusted the vehicle while and fastened seat belt you highway any If operation of this State. or on street plaintiff at the of that law in violation was find that . you may that violation of accident, consider of the time negligence. duty statutory the issue of care on a as to the issue not conclusive is However, the violation negligent. plaintiff of whether was 6 It See footnote you factor or circumstance consider in which should negligence, any, assessing plaintiff. may if of the You prevailing also take into account the of seat custom belt [That is, use at the time the accident. See footnote (and percentage generally what front accident.] drivers seat passengers) used a seat belt at the time deciding Think all of about these factors in whether plaintiff reasonably person prudent acted as a and, negligent using therefore, was was not in not a seat belt. you reasonably prudent person
If decide that a you using a would not have been seat belt, then should plaintiff negligent stop find that deliberating not was damage on the seat belt reduction claim. you reasonably However, See if decide that footnote prudent person would have used a belt in seat you time, situation at that then find should that the plaintiff negligent deliberating was and continue on the damage seat belt reduction claim. fipd you plaintiff negligent, you
If that the was must then decide whether the failure to a seat use belt *31 severity injuries. increased the extent or making of In his/her you decision, this are to all of consider including testimony case, evidence in this of the (es) expert witness who testified. Think about the total plaintiffs injuries any extent of and whether of those injuries would have avoided if been had been he/she using [WHERE you find a seat belt. If APPLICABLE: injured, plaintiff severely that the was evidence injuries shows that severe could not have been his/her belt, avoided the use of a seat it is immaterial that injuries very some minor could have been avoided negligent seat Therefore, belt use. if failure to wear impact injury, you a seat no belt had on the extent If, should cease to consider the seat belt issue. on the you negligent hand, other find that the failure to wear severity injuries, seat belt increased extent of you impact then evaluate the of the failure must belt.] wear a seat See footnote you plaintiff One,
If decide three facts: was not using an accident; available seat belt at the time of the plaintiff negligent using two, that was in not the seat injuries plaintiffs belt; three, result, as a were greater you severe, made or more make then must two appear more decisions. You will see that these () questions your on verdict sheet. part
The first is to decide what of would have been avoided if a had seat belt been used. you. proving The defendant has burden of this to To you this, do must first determine the value of the total damages plaintiff you Then, which incurred. must set damages the amount of the that would have been in the if a sustained accident seat belt had been used. will from You subtract that amount the total actually sustained order to obtain what I will call seat damages. belt you
The final decision make must about seat you assign belt claim is whether allocate or some will percentage plaintiff or fault because separate failure to use a seat belt. This is a his/her concerning your consideration of fault from earlier one causing parties the fault of the the accident. The talking percentage I or fault am about injuries. only now is in connection with the increased percentage ranging For of that how much fault —in percent you plaintiff from one to one hundred find —do responsible? See footnote *32 may wondering why you You be have to make all of they may these decisions and how affect the final you outcome of this I want to describe that to case. now. you you sheet, verdict can see that From making separate are two decisions about fault. The first one is to the cause accident. The second is to the any injuries cause of enhanced or increased which using occurred not a seat belt. you being
Understand that are not asked to make my job calculations; mathematical that will be —to put your findings going give you into effect. But I am your idea some as to how decisions will work in affect- ing the final outcome in this case. See footnote being your I shall do
What is separate with total amount of money and then amount into portions. portion you two One shall be the sum calcu- plaintiffs lated for the enhanced aas result of wearing calling belt, not a seat which I have been seat damages, and belt the other shall be the remainder sum damages, of the non-seat belt which is the total dam- ages damages. less seat belt damages by
I shall reduce the non-seat belt percentage any, you plaintiffs fault, if decide is for causing the accident. I shall reduce the seat belt dam- ages by you the total amount which decide is (cid:127) for the fault of the accident and the failure to wear the taking belt, seat into consideration defendant's fault causing the accident. I shall then add the two reduced together amounts to arrive at the total award to the plaintiff. ago, you I
But, as said a moment do not do these your them, calculations. I do based on answers on the jury verdict sheet.
JURY VERDICT FORM
(Including Damages) Seat Belt negligent operation in the motor 1. DWas his/her vehicle?
Yes_go on to 2. your discussions.
No_end negligent, proxi- a 2. If D was was his/her the accident? mate cause of
Yes_go on to 3. your discussions.
No_end negligent operation in motor 3. P Was his/her vehicle?
Yes_go on to 4. go
No_skip 4 and on to 6. over proxi- negligent, If P 4. was was his/her of the accident? mate cause
Yes_go on to 5. go
No_skip on to 6. over 5 causing Comparison the accident: 5. P %
D %
Total 100% causing only negligence of D in if the Go on to 6 causing negligence more; if D's accident is 50% your 50%, than end discussions. accident is less using at the time of the P an available seat belt 6. Was accident? go
Yes_skip 8 and over 7 and on to 9. No_go on to 7. negligent using
7. P for not Was seat belt?
Yes_go toon go
No_skip over 8 and on to 9. greater 8. Were P's made or more severe be- using cause was not a seat belt? he/she *34 Yes_go on to 9.
No_go on to 9. damages
9. P's total from the accident: $_. only you "yes." you on if Go to 10 answered 8 as If your 6, "no," answered 7 or 8 as end discussions. damages, if P's had used a seat belt he/she $_.
Go to 11. (answer 11. P's seat to 9 minus answer to 10): $_.
Go to 12. using 12. P's for not a seat belt:_% (from 100%). 1% your your discussions;
End return verdict. charge incorporates Footnote: This the standards Waterson v. (1988), Corp., Motors General N.J. 238 but this does not incorporate charge the standard regarding on ultimate outcome liability, appears charge which at model 8.21.
Footnote: 2 This charge to model 5.18M. refers Safety Standards, Footnote: 3 Under Federal Motor Vehicle all 30, 1986, passenger manufactured after June automobiles must be safety system. equipped a seat belt Since the determination of with 39:3-76.2(e) seq. Waterson that the enactment of N.J.S.A. et rein- belts, public policy encouraging forced use seat since require passenger those statutes the driver and front seat to wear a adjusted belt, properly questions and fastened seat several continue negligent example, plaintiff after Waterson. For could he for know- ingly occupying non-functioning If a vehicle with seat belt? there functioned, dispute a factual whether the available seat belt was proving who has the burden that it was functional? Does apply passenger rationale of Waterson to vehicles other than auto- exempted apply mobiles? Does to situations under Waterson 39:3-76.2(g) usage requirements? from seat belt N.J.S.A. See,
Footnote: 4 testimony. Normally, require expert this will Dunn (Law Durso, 383, 1986), Barry Super. v. 219 N.J. 388-389 Div. (Law 1967). Co., Super. v. The Coca Cola 99 N.J. 274-275 Div. Footnote: 5 N.J.S.A. 39:3-76.2(f). applies only passen- The statute automobiles, ger not other vehicles. *35 Waterson, supra,
Footnote: 6
Footnote: 7 at N.J. 266. See, Trickolo, 8 Footnote: Super. (App. Bleeker 89 N.J. 502 Div. v. (1984). 1965), 78, Corp., and Johnson v. Salem 97 N.J. 97-98 Waterson, supra, 9 Footnote: 111 N.J. at
Footnote: 10 Query: apply plaintiff-front when seat Does this passenger years age. See N.J.S.A. is between 5 and 17 of 39:3-76.2(f)(b). Waterson, fully process supra,
Footnote: 11 The described in 270-275, especially N.J. at at 274.
* ‡ ‡‡ ‡ The instruction does not jury fully explain used the court "to mold" the process accident-causing and the failure to wear a seat belt helmet negligence. molding process is described as follows in Waterson: plaintiff twenty
[I]f a found percent liable for an accident and eighty percent defendant for the liable accident, and, further, that plaintiff twenty percent was plaintiffs damages liable for seat-belt due to his failure belt, to use a seat court would mold these three findings determining plaintiffs recovery of fault for damages. percentages those The three of up fault add findings 120%. The court would add the two plaintiffs (twenty percent causing for accident, twenty belt), percent for failure to use seat forty percent. forty which total The sum of percent would become the numerator of a fraction in which the 120, denominator would be or the total of all three (defendant's findings eighty percent fault causing accident, plaintiffs twenty for percent fault causing accident, for plaintiffs twenty percent belt). wearing fault for not a seat This fraction results finding 33-1/3%, in a which reflects the amount which the court recovery would reduce negligent seat-belt due to the failure to use a seat belt.
Waterson,
149 N.W.2d conceptually applies *36 Majority op. the helmet defense asserted this case." respectfully ¶ dissent, however, at 27.1 because rather applying than the seat-belt defense as later discussed Foley City Allis, and clarified in v. West Wis. 2d (1983), 475, 335 the N.W.2d to helmet defense majority opinion substantially here, asserted the modi- rejects, approach purposes fies, and in effect plaintiffs failure to wear a helmet. I conclude that analogous; and helmet seat-belt defenses are there- apply methodology fore, I would seat-belt defense as Foley stated in to the helmet defense here. majority opinion acknowledges
¶ 73. The and dis- Foley apply decision, cusses but then refuses to it to majority this case. The rationalizes its substantial Foley by stating Foley approach, modification oí that the asking jury damages to allocate when it considers the compara- defense, is inconsistent with seat-belt/helmet responsibility Majority op. ¶ tive or fault. at 6. The majority Foley approach, claims that the which is analo- gous approach, to a successive tort or second collision applied plaintiffs negli- when to a seat-belt or helmet gence "operates deprive plaintiff of a com- parison of the fault associated with his failure wear a (or helmet) against here, seat belt as the total' fault that combined to cause the whole of his damages." majority, therefore, Id. at 41. The with- part Foley methodology applied draws as helmets, and instead reduces on the based plaintiffs comparing helmet helmet with the total combined of all of the defendants. Id. at 45.1 cannot join majority's opinion disagree I because with its significant applied modification of to the plaintiffs failure to wear a helmet.' *37 Foley ap- majority's of as The modification unnecessary departure negligence,
plied an to helmet is methodology adopted by reasoning this from the jury years ago. By asking compare the a court 19 negli- negligence plaintiffs with the combined helmet majority opinion gence defendants, the of all of the adopting contrary original for the succes- to the reason separate approach that incident or collision sive tort or rejected Foley.1 specifically applied of in the idea was We negligence plaintiffs comparing and the the seat-belt negligence all the defendants when we of of combined adopted "[I]t Foley methodology. logical is not the necessary negligence causing the collision to view negligence together plaintiffs in a one- with seat-belt actually way when there are two distinct dimensional contributing injuries." Foley, to the incidents Wis. majority's rejection Foley The of runs counter 2d at 488. although majority language because, to this does negligence complete not treat helmet bar recovery damages, jury plaintiffs it now asks the describing 1 I rather seat-belt cases as note that than collisions, involving the better de separate two incidents or might the case is to one scription be to indicate similar involving injuries. separate liability holding Foley, by insulating The in the tortfeasor from
injuries part by negligence, in seat divides caused victim's belt on a basis different from initial collision versus second misleading collision. It is for the court to describe the two parts negligence case as the first collision and second of a seat belt involving likely, greater clarity collision or as two incidents. Most by describing parts achieved the two of the case as the seat could be injury injury part part. belt and the basic McChrystal, Negligence: Michael K. Seat Belt The Ambivalent (1985) Rules, (empha- Marq. Wisconsin L. Rev. 542 n. original). in sis
compare two unrelated incidents negligence: plaintiffs negligence helmet versus the total combined of all of the defendants. longer concept There is no separate a distinction based on a injuries, separate incidents, or because the jury is now asked to look at the whole, accident as a regard plaintiff, to the defendants, but not the when it compares helmet with all of majority of the defendants. is, asking impossible effect, comparison to make an almost *38 compare apples oranges. I find the —to majority's approach conceptually modified difficult to apply, agree original understand and and I with our Foley approach logical statement in that such an not "is necessary." or Id. Foley
¶ adopted 75. We also in stated that we the methodology in an effort to hold a defendant liable for only damages the the defendant caused.
We should seek to plaintiff treat the and defendant in way such a plaintiff that the damages recovers from the injuries defendant for the caused, that the defendant but that the defendant is not held liable for incremental plaintiff the could and should prevented have by wearing an . available seatbelt. majority's significant
Id. at 489. The modification of Foley contrary original purpose separat- runs to this ing responsibility damages by the caused the acci- responsibility damages dent from the caused a person's By failure to wear a belt, seat or here a helmet. asking compare plaintiffs negli- the the helmet gence with combined of all of the defen- clearly accident-causing negli- dants, which includes gence, majority longer distinguishing the is no between "injuries what the defendant caused and what by" utilizing plaintiff prevented a could and should have allocating safety damages accordingly. device, and then Id. majority's goal modifying rejecting in 76. The or protect plaintiff seems to be to from a dra-
matically recovery, damages possible reduced which is Foley, under for failure to wear a helmet. Its method of achieving goal by modifying jury's negligence that — unnecessary. comparison I conclude that however, — modifying Foley impliedly cap rather than to create a on damages, judicially the reduction of a importing statutory cap a to that created similar legislature negligence, regard- for seat-belt the decision ing cap exist, whether and of a how much should is one appropriately legislature. left majority rejects opinion specifically ap-
¶ 77. The plying statutory percent cap the 15 reduction for seat- § 347.48(2m)(g) belt nonuse Wis. Stat. to helmet Majority op. agree nonuse. at 50. I statute applies only "to the failure to wear a seat belt an automobile, not the failure to wear helmet on an ATV" Accordingly, agree majority's Id. I also with state- cap ment that whether similar reduction applied policy *39 be to should helmet is a choice appropriately legislature. Contrary left to the to the majority's approach, try however, I would not to create by cap judicially modifying negligence comparison a developed the Foley. apply Foley in Rather, I would to negligence, including consequences helmet may whatever it have for a reduction in for a legislature failure to a helmet. the wear As did with § negligence by enacting 347.48(g), legis- seat-belt the may similarly, cap plaintiffs decide, lature reduc- tion for failure to a helmet wear or use another analo- gous safety correctly decision, device. however, This is legislative one; this is not a decision for our court. We judicially statutory cap, should not create a nor should modify negligence comparison Foley we tempt the of to at- Accordingly,
to create one. I conclude that the majority's rejection Foley's approach unnecessary. of already
¶ In addition to the stated, reasons I join majority opinion rejection cannot the because its of Foley approach changes legal framework that attorneys the using and the of courts this state have been relying years.
and on for 19 As demonstrated application Foley the circuit court's helmets this Foley case, the method is workable and has been relied adoption. rejection on since its Moreover, its Foley approach applied majority as to helmets, opinion questions regarding why creates unanswered Foley cases, is still viable for helmets, seat-belt but not regarding approach applied and which should be analogous safety majority's opinion other devices. give why fails to a reason seat belts and helmets should differently, be treated which, therefore, raises serious viability doubts about the continued in seat- majority belt cases. In contrast, the seems to concede analogous safety that seat belts and helmets are de- Majority op. rejecting vices. at 27. Furthermore, Foley approach applied to helmets creates additional involving analogous confusion for future cases other safety Foley analysis devices. It is unclear whether the majority's approach applied or new should be such cases. reject majority's I reasons, 79. For these Foley and, therefore,
substantial modification oí I would judgment affirm the Here, the circuit court. Circuit Judge Ziegler correctly adapted Court Annette applied Foley methodology rulings in her on mo- tions after verdict when the asked to was *40 "Assuming Special 10: Question No. Verdict answer injuries 100%, to be what of Charles Stehlik the total portion the failure to wear was caused a helmet?" disagree stated, I with reasons 80. For the applied
majority opinion's modification I Therefore, a helmet. failure to wear respectfully dissent.