(concurring). I write separately to express my concerns about the majority opinion's modification of the analysis in Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983). I have concerns about how the new analysis will work as a practical matter. The dissenting opinion points up some of the problems with the new analysis set forth in the majority opinion but fails to recognize the merits of modifying, in common law tradition, the Foley approach as problems with the Foley approach have come to light.
¶ 61. The majority opinion's analysis has two steps. Like the first step found in the Foley analysis, the majority opinion directs a jury to first determine each party's respective accident-causing negligence for the purposes of Wisconsin's comparative negligence law, Wis. Stat. § 895.045.
*509¶ 62. In the second step, the majority opinion departs from the Foley analysis by instructing the jury to compare a plaintiffs helmet negligence as against the total combined negligence of the defendants. In this way, the relative culpability associated with the failure to wear a helmet is weighed against the relative, culpability of the tortfeasor who caused the accident.1
¶ 63. The second step under the new approach is not a comparison of the negligence of the parties causing the plaintiffs divisible injuries, but rather an "abstract value judgment" comparing each party's negligence generally.2 The jury is asked under the majority opinion to allocate responsibility for the total harm.3 The dissent makes a good point that the new approach is conceptually difficult to understand and to apply. The majority opinion acknowledges this point.4
¶ 64. In the second step, the majority opinion attempts to correct a flaw in the Foley analysis: The majority is persuaded that under the Foley analysis relating to the division of damages, plaintiffs may not *510recover for substantial injury self-inflicted by their failure to wear a helmet when but for a defendant's substantial negligence in causing the accident a plaintiff would not have been injured at all.51 agree that this problem exists in the Foley approach as it has been applied.6
¶ 65. The present case falls within the subject generally described in tort treatises' as apportionment of liability when damages are divisible, that is, the damages can be divided by causation.7 The damages are divisible in the present case when expert testimony is offered to show that a part of the plaintiffs total injuries was caused by the accident and a part by the failure to wear a helmet. A fundamental principle of negligence law and apportionment of liability is that when no causal relationship exists between an actor's conduct and the victim's injuries, then the actor is not liable for the injuries.8 Thus, under the Foley analysis, a defendant would not be held liable for incremental *511injuries a plaintiff suffered that could have been and should have been prevented by wearing a helmet.9
¶ 66. The majority opinion treats the plaintiffs injuries as indivisible. The effect of the majority opinion's analysis is to impose liability on a defendant who negligently causes an accident for some part of the injuries a plaintiff inflicted on himself or herself by failing to wear a helmet.
¶ 67. Despite the modifications made in the Foley analysis by the majority opinion, a jury will nonetheless hear evidence about what injury to a plaintiff resulted from a defendant's negligence in causing an accident and what injury to a plaintiff resulted from the plaintiffs failure to wear a helmet. This proof is admissible, as it is under the Foley analysis, because the jury is asked under the majority opinion's analysis whether a plaintiff was negligent in failing to wear a helmet and whether that negligence was a cause of the plaintiffs injury.10 The jury is also asked to determine the relative culpability of the plaintiff against the relative culpability of the tortfeasor who caused the accident.
¶ 68. The jury will thus hear evidence that a plaintiffs injury is divisible, that is, a plaintiffs injury can be divided by causation. The jury will hear evidence about the injury to a plaintiff arising from the accident and the injury to the plaintiff arising from the lack of helmet. Thus, the "apportionment of responsibility or fault," to use the majority opinion's terminology (like the apportionment of causal negligence under the Foley analysis), continues to depend on factual determinations about divisible injuries and the relationship be*512tween the negligence of a plaintiff and the negligence of a defendant in causing the plaintiffs injuries.
¶ 69. Although a jury will be asked in the second step of the majority opinion's analysis to undertake a more abstract comparison of responsibility, rather than a more "concrete" comparison of negligence causing divisible damages, the factual evidence of the divisible damages will undoubtedly significantly influence a jury as it attempts to undertake the majority opinion's "more abstract" analysis.
¶ 70. I am concerned whether the majority opinion's approach will be understood by juries, will accomplish its goal, or will substantially change the legal framework that the attorneys and courts of this state have been using for the past two decades. But the attempt to correct the flaw in Foley is a step in the right direction.
¶ 71. For these reasons, I write separately.
Appendix
Waterson v. General Motors Corp. — New Jersey Jury Instruction: 6.11 Damages — Personal Injuries
J. Damages as Affected by Nonuse of Seat Belt Including Ultimate Outcome See footnote 1 (6/89)
As I told you earlier, See footnote 2 defendant's contention that plaintiff was not wearing a seat belt is not relevant in deciding who is at fault for causing the accident. But it may be meaningful in determining the amount of money plaintiff may recover for any injuries you find he/she received. I would now like to tell you how this works.
In order to succeed on this reduction of damages issue, defendant must prove by the greater weight of the evidence that:
*5131. Plaintiff was not using an available seat belt at the time of the accident. See footnote 3
2. Plaintiff was negligent in not using that seat belt at the time of the accident.
3. Plaintiffs injuries were made greater or more severe because he/she was not using a seat belt. In other words, some or all of plaintiffs injuries could have been prevented or avoided if he/she had been using a seat belt. See footnote 4
I would like now to talk with you about how you go about deciding if defendant has proven each of these three points to you. You may note that each of these points is set out on the jury verdict sheet as questions ().
The first point you must decide is whether defendant has shown that plaintiff was not using an available seat belt at the time of the accident.
The second point that defendant must show is that plaintiff was negligent for not using the seat belt.
Negligence in this type of situation is the failure to use the degree of care for one's own safety and protection that a reasonably prudent person would use in the same or similar circumstances by a reasonably prudent person. I mean neither the most cautious person nor one who is unusually bold, but rather one of reasonable vigilance, caution and prudence.
New Jersey law See footnote 5 requires the driver [and front seat passengers] of a car to wear a properly adjusted and fastened seat belt while the vehicle is in operation on any street or highway of this State. If you find that the . plaintiff was in violation of that law at the time of the accident, you may consider that violation of a statutory duty of care on the issue of negligence. However, the violation is not conclusive as to the issue *514of whether plaintiff was negligent. See footnote 6 It is a factor or circumstance which you should consider in assessing the negligence, if any, of the plaintiff. You may also take into account the prevailing custom of seat belt use at the time of the accident. See footnote 7 [That is, what percentage generally of the drivers (and front seat passengers) used a seat belt at the time of the accident.] Think about all of these factors in deciding whether plaintiff acted as a reasonably prudent person and, therefore, was or was not negligent in not using a seat belt.
If you decide that a reasonably prudent person would not have been using a seat belt, then you should find that the plaintiff was not negligent and stop deliberating on the seat belt damage reduction claim. See footnote 8 However, if you decide that a reasonably prudent person would have used a seat belt in that situation at that time, then you should find that the plaintiff was negligent and continue deliberating on the seat belt damage reduction claim.
If you fipd that the plaintiff was negligent, you must then decide whether the failure to use a seat belt increased the extent or severity of his/her injuries. In making this decision, you are to consider all of the evidence in this case, including the testimony of the expert witness (es) who testified. Think about the total extent of plaintiffs injuries and whether any of those injuries would have been avoided if he/she had been using a seat belt. [WHERE APPLICABLE: If you find that the plaintiff was severely injured, and the evidence shows that his/her severe injuries could not have been avoided by the use of a seat belt, it is immaterial that some very minor injuries could have been avoided by seat belt use. Therefore, if the negligent failure to wear a seat belt had no impact on the extent of the injury, you *515should cease to consider the seat belt issue. If, on the other hand, you find that the negligent failure to wear a seat belt increased the extent or severity of injuries, you must then evaluate the impact of the failure to wear a seat belt.] See footnote 9
If you decide three facts: One, plaintiff was not using an available seat belt at the time of the accident; two, that plaintiff was negligent in not using the seat belt; and three, as a result, plaintiffs injuries were made greater or more severe, then you must make two more decisions. You will see that these appear as questions () on your jury verdict sheet.
The first is to decide what part of plaintiffs injuries would have been avoided if a seat belt had been used. The defendant has the burden of proving this to you. To do this, you must first determine the value of the total damages which plaintiff incurred. Then, you must set the amount of the damages that would have been sustained in the accident if a seat belt had been used. You will subtract that amount from the total damages actually sustained in order to obtain what I will call seat belt damages.
The final decision you must make about the seat belt claim is whether you will allocate or assign some percentage of negligence or fault to plaintiff because of his/her failure to use a seat belt. This is a separate consideration of fault from your earlier one concerning the fault of the parties in causing the accident. The percentage of negligence or fault I am talking about now is only in connection with the increased injuries. For how much of that fault — in a percentage ranging from one to one hundred percent — do you find plaintiff is responsible? See footnote 10
*516You may be wondering why you have to make all of these decisions and how they may affect the final outcome of this case. I want to describe that to you now.
From the jury verdict sheet, you can see that you are making two separate decisions about fault. The first one is to the cause of the accident. The second is to the cause of any enhanced or increased injuries which occurred by not using a seat belt.
Understand that you are not being asked to make the mathematical calculations; that will be my job — to put your findings into effect. But I am going to give you some idea as to how your decisions will work in affecting the final outcome in this case. See footnote 11
What I shall do is being with your total amount of damages and then separate that money amount into two portions. One portion shall be the sum you calculated for the plaintiffs enhanced injuries as a result of not wearing a seat belt, which I have been calling seat belt damages, and the other shall be the remainder sum of the non-seat belt damages, which is the total damages less seat belt damages.
I shall reduce the non-seat belt damages by the percentage of fault, if any, you decide is plaintiffs for causing the accident. I shall reduce the seat belt damages by the total amount which you decide is plaintiffs for the fault of the accident and the failure to wear the • seat belt, taking into consideration defendant's fault for causing the accident. I shall then add the two reduced amounts together to arrive at the total award to the plaintiff.
But, as I said a moment ago, you do not do these calculations. I do them, based on your answers on the jury verdict sheet.
*517JURY VERDICT FORM
(Including Seat Belt Damages)
1. Was D negligent in the operation of his/her motor vehicle?
Yes_go on to 2.
No_end your discussions.
2. If D was negligent, was his/her negligence a proximate cause of the accident?
Yes_go on to 3.
No_end your discussions.
3. Was P negligent in the operation of his/her motor vehicle?
Yes_go on to 4.
No_skip over 4 and 5, and go on to 6.
4. If P was negligent, was his/her negligence a proximate cause of the accident?
Yes_go on to 5.
No_skip over 5 and go on to 6.
5. Comparison of negligence in causing the accident:
P %
D %
Total 100%
Go on to 6 only if the negligence of D in causing the accident is 50% or more; if D's negligence in causing the accident is less than 50%, end your discussions.
6. Was P using an available seat belt at the time of the accident?
*518Yes_skip over 7 and 8 and go on to 9.
No_go on to 7.
7. Was P negligent for not using a seat belt?
Yes_go on to 8.
No_skip over 8 and go on to 9.
8. Were P's injuries made greater or more severe because he/she was not using a seat belt?
Yes_go on to 9.
No_go on to 9.
9. P's total damages from the accident: $_.
Go on to 10 only if you answered 8 as "yes." If you answered 6, 7 or 8 as "no," end your discussions.
10. P's damages, if he/she had used a seat belt $_.
Go to 11.
11. P's seat damages (answer to 9 minus answer to 10): $_.
Go to 12.
12. P's negligence for not using a seat belt:_% (from 1% to 100%).
End your discussions; return your verdict.
Footnote: 1 This charge incorporates the standards of Waterson v. General Motors Corp., 111 N.J. 238 (1988), but this does not incorporate the standard charge on ultimate outcome regarding liability, which appears at model charge 8.21.
*519Footnote: 2 This refers to model charge 5.18M.
Footnote: 3 Under Federal Motor Vehicle Safety Standards, all passenger automobiles manufactured after June 30, 1986, must be equipped with a safety seat belt system. Since the determination of Waterson that the enactment of N.J.S.A. 39:3-76.2(e) et seq. reinforced a public policy encouraging the use of seat belts, and since those statutes require the driver and front seat passenger to wear a properly adjusted and fastened seat belt, several questions continue after Waterson. For example, could plaintiff he negligent for knowingly occupying a vehicle with a non-functioning seat belt? If there is a factual dispute whether the available seat belt was functioned, who has the burden of proving that it was functional? Does the rationale of Waterson apply to vehicles other than passenger automobiles? Does Waterson apply to situations exempted under N.J.S.A. 39:3-76.2(g) from seat belt usage requirements?
Footnote: 4 Normally, this will require expert testimony. See, Dunn v. Durso, 219 N.J. Super. 383, 388-389 (Law Div. 1986), and Barry v. The Coca Cola Co., 99 N.J. Super. 270, 274-275 (Law Div. 1967).
Footnote: 5 N.J.S.A. 39:3-76.2(f). The statute applies only to passenger automobiles, not other vehicles.
Footnote: 6 Waterson, supra, 111 N.J. at 263.
Footnote: 7 Waterson, supra, 111 N.J. at 266.
Footnote: 8 See, Bleeker v. Trickolo, 89 N.J. Super. 502 (App. Div. 1965), and Johnson v. Salem Corp., 97 N.J. 78, 97-98 (1984).
Footnote: 9 Waterson, supra, 111 N.J. at 272.
Footnote: 10 Query: Does this apply when the plaintiff-front seat passenger is between 5 and 17 years of age. See N.J.S.A. 39:3-76.2(f)(b).
*520Footnote: 11 The process is fully described in Waterson, supra, 111 N.J. at 270-275, especially at 274.
* ‡ ‡ ‡ ‡
The jury instruction does not fully explain the process used by the court "to mold" the accident-causing negligence and the failure to wear a seat belt or helmet negligence. The molding process is described as follows in Waterson:
[I]f a jury found plaintiff twenty percent liable for an accident and defendant eighty percent liable for the accident, and, further, that plaintiff was twenty percent liable for plaintiffs seat-belt damages due to his failure to use a seat belt, the court would mold these three findings of fault in determining plaintiffs recovery for those damages. The three percentages of fault add up to 120%. The court would add the two findings of plaintiffs negligence (twenty percent for causing the accident, twenty percent for failure to use a seat belt), which total forty percent. The sum of forty percent would become the numerator of a fraction in which the denominator would be 120, or the total of all three findings of negligence (defendant's eighty percent fault for causing the accident, plaintiffs twenty percent fault for causing the accident, and plaintiffs twenty percent fault for not wearing a seat belt). This fraction results in a finding of 33-1/3%, which reflects the amount by which the court would reduce plaintiffs recovery for seat-belt damages due to the negligent failure to use a seat belt.
Waterson, 527 A.2d at 375.
Majority op. at ¶ 8.
Majority op. at ¶ 46 n.13, ¶ 47.
Unlike the second step found in Foley, the majority opinion's second step no longer instructs a jury to divide damages by determining what percentage of the plaintiffs total damages are attributable to the plaintiffs failure to wear a helmet. Instead, the jury is instructed to compare the plaintiffs helmet negligence against the total combined negligence of the defendants.
Majority op. at ¶ 48. The majority opinion states that the fact-finder should be able "to compare the plaintiffs helmet negligence as against the total combined negligence of the defendants, rather than treating the comparison as an allocation or division of injuries or damages." Majority op. at ¶ 8.
Majority op. at ¶ 47.
Majority op. at ¶ 6, ¶¶ 42-44. See also Gaertner v. Holcka, 219 Wis. 2d 436, 462, 580 N.W.2d 271 (1998) (Bradley, J., concurring). See also Michael K. McChrystal, Seat Belt Negligence: The Ambivalent Wisconsin Rules, 68 Marq. L. Rev. 539, 548 (1985).
See note 14 of the majority opinion. For a case that appears to recognize the same limitations of the Foley analysis, but adopts an approach different from that adopted by the majority opinion, see Waterson v. General Motors Corp., 544 A.2d 357, 374-75 (N.J. 1988). Waterson treats the injuries as divisible. I have set forth in an appendix to this opinion the jury instructions and special verdict questions given under Waterson to explain this approach.
Restatement (Third) of Torts, Apportionment of Liability § 26 (2000).
Restatement (Second) of Torts § 430 (1965).
Foley v. City of West Allis, 113 Wis. 2d 475, 489, 335 N.W.2d 824 (1983).
Majority op. at ¶ 46.