¶ 54. (concurring). Historically, this court has carefully pruned the deadwood from various tort doctrines to ensure that justice is done. We abolished the zone of danger rule when negligent infliction of emotional distress is alleged in favor of traditional elements of tort action in negligence. Bowen v. Lumbermens Mut. Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). We abolished the distinction between the duty owed to licensees and invitees. Antoniewicz v. Reszczynski, 70 Wis. 2d 836, 236 N.W.2d 1 (1975). We abolished special rules of duty in automobile host-guest cases. McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis. 2d 374, 113 N.W.2d 14 (1962). The time has now come to abolish the emergency doctrine.
¶ 55. In this case the majority opinion valiantly forges through the doctrinal jungle created by the application of the emergency doctrine when negligence is alleged. I respectfully disagree with taking this course. The emergency doctrine obfuscates clear thinking about the precise question to be answered in a negligence action. Because the emergency doctrine jeopardizes justice, it has no place in our tort law.
¶ 56. The confusion generated by the emergency doctrine arises under claims of negligence per se, as in the present case, as well as when common law negligence is alleged. The doctrine should be abolished with respect to both.
*407Common Law Negligence
¶ 57. When common law negligence is at issue, the emergency doctrine does not change the standard of care required of the party whose conduct is in question. As this court has already stated:
The test of negligence in the face of an emergency is identical to that used in a nonemergency situation, i.e., was the action or inaction conformable with that expected of the reasonable or prudent man placed in like circumstances. In the emergency situation, the conduct can be mistaken and yet prudent. Nevertheless, the prudent-reasonable-man test is applicable at all times prior to the emergency, during it, and after it.
Zillmer v. Miglautsch, 35 Wis. 2d 691, 704, 151 N.W.2d 741 (1967)(internal quotations and citations omitted). In the words of Professor Richard V. Campbell, of the University of Wisconsin Law School, the emergency doctrine is nothing more than "orthodox negligence doctrine" and "simply says that you are negligent if you are negligent." Professor Richard V. Campbell, Recent Developments of Tort Law in Wisconsin, Institute of Continuing Legal Education, CLEW, p. 34-35 (1969). Other courts and commentators echo this standard.1 As the Supreme Court of Kansas stated, "[t]he doctrine *408of sudden emergency cannot be regarded as something apart from and unrelated to the fundamental rule that everyone is under a duty to exercise ordinary care under the circumstances to avoid injury to others. A claim of emergency is but a denial of negligence." Lawrence v. Deemy, 461 P.2d 770, 774 (1969). The emergency doctrine, as set forth in Wis JI — Civil 1105A, is simply a restatement of the ordinary prudent person standard of conduct.2
*409¶ 58. Over 30 years ago Professor Campbell questioned whether a rule of marginal value was worth the time, energy, and expense it absorbed. Professor Richard V. Campbell, Recent Developments of Tort Law in Wisconsin, Institute of Continuing Legal Education, CLEW, pp. 34-37 (1969). Professor Campbell pointed out that the emergency doctrine has been a substantial issue in many appeals, a fact that raises questions about the doctrine's utility in clarifying the law. Id. at 35. He also questioned whether the doctrine was helpful to judges. Why does a judge need a special doctrine regarding negligence as to management and control in an emergency? Professor Campbell thought a judge's "usual control over sufficiency of the evidence gives him adequate power." Id. at 36. In addition, Professor Campbell noted that problems associated with the emergency doctrine may, in a given case, overwhelm and obscure important substantive issues. To illustrate this point, Professor Campbell cited an opinion of this court that spent several pages discussing an emergency instruction that was erroneously given by the circuit court, while only a few sentences addressed the key negligence issue in the case. Id. at 36 (citing Menge v. State Farm, 41 Wis. 2d 578, 164 N.W.2d 495 (1969)).
¶ 59. Professor Campbell has not been alone in finding the emergency doctrine a source of concern. "Despite the basic logic and simplicity of the sudden emergency doctrine, it is all too frequently misapplied on the facts or misstated injury instructions." W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 33, p. 197 (5th ed. 1984) (footnote omitted) [hereinafter "Keeton, Law of Torts"]. Many courts are concluding that: abolishing the emergency doctrine is *410warranted because it is potentially confusing; the standard jury instruction in a negligence action is sufficient; and all the circumstances, including those giving rise to an "emergency," remain available for counsel to argue to the fact finder. Jeffrey F. Ghent, J.D., Modern Status of Sudden Emergency Doctrine, 10 A.L.R. 5th 680 (1993).
¶ 60. The Mississippi Supreme Court identified two of the central criticisms of the doctrine. First, even a well-drafted instruction can create confusion as to whether in an emergency the reasonable person standard applies, or some other standard. "The hazard of relying on the doctrine of 'sudden emergency' is the tendency to elevate its principles above what is required to be proven in a negligence action." Knapp v. Stanford, 392 So. 2d 196, 198 (Miss. 1980). Second, the court noted that the emergency instruction tended to confuse the principle of comparative negligence. Id. The Mississippi court concluded, "the orderly disposal of negligence cases would be best served by applying uniform principles of negligence under all circumstances." Id. at 199.
¶ 61. The Hawaii Supreme Court also observed that it "would be foolhardy to jeopardize the outcome of trial by giving an instruction adding little to the basic jury charge that must be given in any negligence action." DiCenzo v. Izawa, 723 P.2d 171, 181 (Haw. 1986). The court stated that the risk of prejudicial error in giving the emergency instruction exceeds the possibility of error in not doing so, and the instruction therefore should be withheld. The court stated that the circumstances purportedly constituting an emergency are proper matters for argument by counsel to the jury because "the conduct in question must always be con*411sidered in the light of all the surrounding circumstances." Id.
¶ 62. Similarly, the Supreme Court of New Mexico held that the jury instruction on sudden emergency should no longer be used in negligence cases. Dunleavy v. Miller, 862 P.2d 1212 (N.M. 1993). The court found the instruction unnecessary because the standard of care is already adequately stated in another instruction. Id. at 1218. It also noted that the emergency doctrine could create confusion by overemphasizing the circumstances surrounding a party's conduct and seeming to imply that a different standard of care applies in a sudden emergency. Id.
¶ 63. In Wisconsin, the emergency instruction is already limited to those situations in which: the party seeking the instruction is free from negligence in the creation of the emergency; the events occur rapidly; and, the alleged negligence is related to management and control. Edeler v. O'Brien, 38 Wis. 2d 691, 697, 158 N.W.2d 301 (1968). Given its limited application, doubtful utility, and potential for creating confusion, use of the emergency instruction should end in this jurisdiction as well. Our negligence instruction clearly sets forth the standard of care. Wis JI — Civil 1001. Trial counsel can argue to the jury whether a party's actions under the circumstances were careless or prudent, but mistaken.3
*412Negligence Per Se
■ ¶ 64. Turning next to negligence per se, it can be concluded that use of the emergency doctrine should end here as well. Understanding why the emergency doctrine should be abolished when negligence per se is alleged requires an analysis of the relationship between statutes and torts.4
¶ 65. Our cases distinguish between statutory violations that give rise to negligence per se and those that give rise to "absolute liability." D.L. v. Huebner, 110 Wis. 2d 581, 639-40, 329 N.W.2d 890 (1983). Under the doctrine of absolute liability, if the court determines that the legislature intended to place the burden for injury entirely upon the individual who violated the statute, then liability lies simply by establishing that a party violated the statute within the time period in which the injury occurred and then by proving damages. Id. at 640. Under this doctrine, causation is not an issue and contributory negligence is not a defense. Id. A violation of child labor laws has been held to give rise to absolute liability. Id. Absolute liability for a statutory violation is a rarity. Keeton, Law of Torts, § 36, at 228.
¶ 66. On the other hand, negligence per se is "a form of ordinary negligence." Huebner, 110 Wis. 2d at 640. Negligence is conduct that "falls below a standard established by the law for the protection of others against unreasonable risk of harm." Keeton, Law of *413Torts, § 31, at 170 (footnote omitted). The standard of conduct of an ordinary prudent person can be established through several means, including a judicial decision or legislative enactment. Restatement (Second) of Torts § 285. "This court has held that when the legislature or an administrative agency prescribes what particular acts shall or shall not be done, the statute or rule may be interpreted as establishing a standard of care, deviation from which constitutes negligence." McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 418, 312 N.W.2d 37 (1981) (internal quotation omitted); Keeton, Law of Torts, § 36, p. 230. Only causation, and defenses such as contributory negligence, remains to be resolved. Huebner, 110 Wis. 2d at 640; Keeton, Law of Torts, § 36, at 230.
¶ 67. To determine if violation of a safety statute constitutes negligence per se, three elements must be satisfied:
(1) the harm inflicted was the type the statute was designed to prevent; (2) the person injured was within the class of persons sought to be protected; and (3) there is some expression of legislative intent that the statute become a basis for the imposition of civil liability.
Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44, 66-67, 596 N.W.2d 456 (1999) (quoting Tatur v. Solsrud, 174 Wis. 2d 735, 743, 498 N.W.2d 232 (1993)).
¶ 68. If a court determines that the requirements to establish negligence per se are established, then the terms of the statute set the standard of care. When it applies, the emergency doctrine functions as an excuse. La Vallie v. General Ins. Co., 17 Wis. 2d 522, 527, 117 N.W.2d 703 (1962). The term "excuse" can be some*414what misleading.5 Liability is not avoided under the emergency doctrine because a party is somehow justified in violating the statute. Liability is avoided because it is concluded that under all the circumstances the actor's conduct was that of an ordinarily prudent person. This can only occur because the emergency doctrine changes the actor's duty from compliance with the terms of the statute into that of a reasonable person confronted by all the circumstances, including the emergency. In other words, the party asserting negligence per se loses the benefit of the doctrine, which is having the element of duty established. To again echo Professor Campbell, do we really need a special doctrine for this?
¶ 69. Rather than perpetuating a nineteenth century6 doctrine that arguably does more to obscure justice than to bring it about, use of the sudden emergency doctrine should end when negligence per se is alleged.
¶ 70. In its place this court should simply make a clear statement as to the respective burden that must be carried by each party when negligence per se is alleged. If a party establishes violation of a motor vehicle safety statute and the elements necessary to find negligence per se, then the burden of production should shift to the party against whom the action lies to establish that his or her conduct was that of an ordinarily prudent person under the same circumstances. If the party meets his or her burden, common law negligence *415becomes a jury question. If the court concludes that this party has failed to meet his or her burden, then terms of the statute set the standard of care. Causation and contributory negligence then remain to be established. This is the standard that the Oregon Supreme Court apparently follows. In a case expressing disapproval of the emergency doctrine the Oregon court held: "When the evidence establishes that a party has violated a motor vehicle statute, such a party has the burden of producing evidence that, nevertheless, he was acting reasonably. Without such evidence the party is negligent as a matter of law." Barnum v. Williams, 504 P.2d 122, 126 (Or. 1972). Whether the circumstances constitute an "emergency" is irrelevant. The conduct in question is considered in light of all the surrounding circumstances.
¶ 71. The majority's yeoman-like effort to apply current law regarding the emergency doctrine illustrates the intellectual contortions the doctrine generates. It is not enough that the applicable safety statute is identified. The statute is parsed into additional duties, only some of them involving management and control and thus amenable to application of the emergency doctrine. Majority Op. at ¶ 36-38. How can we feel assured that this contorted process will accomplish justice?
¶ 72. As the majority notes, abolishing the emergency doctrine and adopting an alternative approach will not change the result in this case. Majority Op. at ¶ 31 n.7. That is surely no reason to continue to use a doctrine that is at its best awkward and at its worst jeopardizes justice. Therefore, although I concur in the conclusion reached by the majority in this case, I would argue that we should seize the opportunity to abolish the emergency doctrine in Wisconsin.
*416" 'That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature.'"
State v. Esser, 16 Wis. 2d 567, 581-92, 115 N.W.2d 505 (1962) (quoting from Mr. Justice Cardozo, The Nature of the Judicial Process, Adherence to Precedent, 142, 150-152 (1945 ed.)).
W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 33, at 196-97 (5th ed. 1984) states: "There are, however, a number of limitations which have hedged the 'emergency' rule. It does not mean that any different standard is to be applied in the emergency. The conduct required is still that of a reasonable person under the circumstances, as they would appear to one who was using proper care, and the emergency is to be considered only as one of the circumstances." (Emphasis added; footnote omitted.)
*408Harper, James & Gray, The Law of Torts, § 16.11 (2d ed. 1986) states: "Conduct in emergencies. If a person is caught in a sudden emergency, that is part of the circumstances in the light of which the person's conduct at that time is to be judged."
Restatement (Second) of Torts § 296 cmt. b (1965), discussing the standard of conduct in an emergency, states in part,
The law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor’s conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. The mere fact that his choice is unfortunate does not make it improper.even though it is one which the actor should not have made had he had sufficient time to consider all the effects likely to follow his action.
Wis JI — Civil 1105A:
When considering negligence as to management and control bear in mind that a driver may suddenly be confronted by an emergency, not brought about or contributed to by her or his own negligence. If that happens and the driver is compelled to act instantly to avoid collision, the driver is not negligent if he or she makes such a choice of action or inaction as an ordinarily prudent person might make if placed in the same position. This is so even if it later appears that her or his choice was not the best or safest course.
This rule does not apply to any person whose negligence wholly or in part created the emergency. A person is not entitled to the benefit of this emergency rule unless he or she is without fault in the creation of the emergency.
*409This emergency rule is to be considered by you only with respect to your consideration of negligence as to management and control.
The "mistaken and yet prudent" formulation describing the emergency principle was set down by Justice Holmes while he was Chief Judge of the Massachusetts Supreme Judicial Court. Dunleavy v. Miller, 862 P.2d 1212, 1216 (N.M. 1993) (citing Kane v. Worcester Consol. St. Ry., 65 N.E. 54, 54 (1902)).
A discussion of the relationship between torts and statutes is found in two articles by Professor Caroline Forell: Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What's the Difference ?, 77 Or. L. Rev. 497 (1998); Caroline Forell, The Statutory Duty Action in Tort: A Statutory / Common Law Hybrid, 23 Ind. L. Rev. 781 (1990).
See George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537, 557-64 (1972) for a discussion of the distinction between excuse and justification.
For a brief examination of the history of the emergency doctrine, see Dunleavy v. Miller, 862 P.2d 1212, 1215 (N.M. 1993), and the sources cited therein.