(dissenting). I agree with the majority opinion that the seat-belt defense, first expressed in Bentzler v. Braun, 34 Wis. 2d 362, 149 N.W.2d 626 (1967), "logically and conceptually applies to *521the helmet defense asserted in this case." Majority op. at ¶ 27.1 respectfully dissent, however, because rather than applying the seat-belt defense as later discussed and clarified in Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983), to the helmet defense asserted here, the majority opinion substantially modifies, and in effect rejects, that approach for purposes of the plaintiffs failure to wear a helmet. I conclude that the seat-belt and helmet defenses are analogous; therefore, I would apply the seat-belt defense methodology as stated in Foley to the helmet defense here.
¶ 73. The majority opinion acknowledges and discusses the Foley decision, but then refuses to apply it to this case. The majority rationalizes its substantial modification oí Foley by stating that the Foley approach, asking a jury to allocate damages when it considers the seat-belt/helmet defense, is inconsistent with comparative responsibility or fault. Majority op. at ¶ 6. The majority claims that the Foley approach, which is analogous to a successive tort or second collision approach, when applied to a plaintiffs seat-belt or helmet negligence "operates to deprive the plaintiff of a jury comparison of the fault associated with his failure to wear a seat belt (or here, a helmet) as against the total' fault that combined to cause the whole of his injuries or damages." Id. at ¶ 41. The majority, therefore, withdraws part of the Foley methodology as applied to helmets, and instead reduces damages based on the plaintiffs helmet negligence by comparing the plaintiffs helmet negligence with the total combined negligence of all of the defendants. Id. at ¶ 45.1 cannot join the majority's opinion because I disagree with its significant modification of Foley as applied to the plaintiffs failure to wear a helmet.'
*522¶ 74. The majority's modification of Foley as applied to helmet negligence, is an unnecessary departure from the reasoning and methodology adopted by this court 19 years ago. By asking a jury to compare the plaintiffs helmet negligence with the combined negligence of all of the defendants, the majority opinion is contrary to the original reason for adopting the successive tort or separate incident or collision approach that was applied in Foley.1 We specifically rejected the idea of comparing the plaintiffs seat-belt negligence and the combined negligence of all of the defendants when we adopted the Foley methodology. "[I]t is not logical or necessary to view the negligence causing the collision together with plaintiffs seat-belt negligence in a one-dimensional way when there are actually two distinct incidents contributing to the injuries." Foley, 113 Wis. 2d at 488. The majority's rejection of Foley runs counter to this language because, although the majority does not treat helmet negligence as a complete bar to the plaintiffs recovery of damages, it now asks the jury to *523compare two unrelated incidents of negligence: plaintiffs helmet negligence versus the total combined negligence of all of the defendants. There is no longer a distinction based on a concept of separate incidents, or separate injuries, because the jury is now asked to look at the accident as a whole, in regard to the defendants, but not the plaintiff, when it compares the plaintiffs helmet negligence with all of the negligence of the defendants. The majority is, in effect, asking a jury to make an almost impossible comparison — to compare apples to oranges. I find the majority's modified approach conceptually difficult to understand and apply, and I agree with our original statement in Foley that such an approach "is not logical or necessary." Id.
¶ 75. We also stated in Foley that we adopted the methodology in an effort to hold a defendant liable for only the damages the defendant caused.
We should seek to treat the plaintiff and defendant in such a way that the plaintiff recovers damages from the defendant for the injuries that the defendant caused, but that the defendant is not held liable for incremental injuries the plaintiff could and should have prevented by wearing an available seatbelt. .
Id. at 489. The majority's significant modification of Foley runs contrary to this original purpose of separating the responsibility and damages caused by the accident from the responsibility and damages caused by a person's failure to wear a seat belt, or here a helmet. By asking the jury to compare the plaintiffs helmet negligence with combined negligence of all of the defendants, which clearly includes accident-causing negligence, the majority is no longer distinguishing between what the defendant caused and what "injuries the *524plaintiff could and should have prevented by" utilizing a safety device, and then allocating damages accordingly. Id.
¶ 76. The majority's goal in modifying or rejecting Foley seems to be to protect the plaintiff from a dramatically reduced damages recovery, which is possible under Foley, for failure to wear a helmet. Its method of achieving that goal — by modifying the jury's negligence comparison — however, is unnecessary. I conclude that rather than modifying Foley to create impliedly a cap on the reduction of a plaintiffs damages, or judicially importing a statutory cap similar to that created by the legislature for seat-belt negligence, the decision regarding whether and how much of a cap should exist, is one appropriately left to the legislature.
¶ 77. The majority opinion specifically rejects applying the 15 percent statutory reduction cap for seat-belt nonuse in Wis. Stat. § 347.48(2m)(g) to helmet nonuse. Majority op. at ¶ 50. I agree that the statute applies only "to the failure to wear a seat belt in an automobile, not the failure to wear a helmet on an ATV" Id. Accordingly, I also agree with the majority's statement that whether a similar damages reduction cap should be applied to helmet negligence is a policy choice appropriately left to the legislature. Contrary to the majority's approach, however, I would not try to create a cap judicially by modifying the negligence comparison developed in Foley. Rather, I would apply Foley to helmet negligence, including whatever consequences it may have for a reduction in damages for a plaintiffs failure to wear a helmet. As the legislature did with seat-belt negligence by enacting § 347.48(g), the legislature may decide, similarly, to cap a plaintiffs reduction for failure to wear a helmet or use another analogous safety device. This decision, however, is correctly a *525legislative one; this is not a decision for our court. We should not judicially create a statutory cap, nor should we modify the negligence comparison of Foley to attempt to create one. Accordingly, I conclude that the majority's rejection of Foley's approach is unnecessary.
¶ 78. In addition to the reasons already stated, I cannot join the majority opinion because its rejection of the Foley approach changes the legal framework that the attorneys and the courts of this state have been using and relying on for 19 years. As demonstrated by the circuit court's application of Foley to helmets in this case, the Foley method is workable and has been relied on since its adoption. Moreover, by its rejection of the Foley approach as applied to helmets, the majority opinion creates unanswered questions regarding why Foley is still viable for seat-belt cases, but not helmets, and regarding which approach should be applied to other analogous safety devices. The majority's opinion fails to give a reason why seat belts and helmets should be treated differently, which, therefore, raises serious doubts about the continued viability of Foley in seat-belt cases. In contrast, the majority seems to concede that seat belts and helmets are analogous safety devices. Majority op. at ¶ 27. Furthermore, rejecting the Foley approach as applied to helmets creates additional confusion for future cases involving other analogous safety devices. It is unclear whether the Foley analysis or the majority's new approach should be applied in such cases.
¶ 79. For these reasons, I reject the majority's substantial modification oí Foley and, therefore, I would affirm the judgment of the circuit court. Here, Circuit Court Judge Annette Ziegler correctly adapted and applied the Foley methodology in her rulings on motions after verdict and when the jury was asked to *526answer Special Verdict Question No. 10: "Assuming the total injuries of Charles Stehlik to be 100%, what portion of the injuries was caused by the failure to wear a helmet?"
¶ 80. For the reasons stated, I disagree with the majority opinion's modification of Foley as applied to the plaintiffs failure to wear a helmet. Therefore, I respectfully dissent.
I note that rather than describing seat-belt cases as involving two separate incidents or collisions, the better description might be to indicate that the case is similar to one involving separate injuries.
The holding in Foley, by insulating the tortfeasor from liability for injuries caused in part by the victim's seat belt negligence, divides the injuries on a basis different from initial collision versus second collision. It is misleading for the Foley court to describe the two parts of a seat belt negligence case as the first collision and second collision or as involving two incidents. Most likely, greater clarity could be achieved by describing the two parts of the case as the seat belt injury part and the basic injury part.
Michael K. McChrystal, Seat Belt Negligence: The Ambivalent Wisconsin Rules, 68 Marq. L. Rev. 539, 542 n. 9 (1985) (emphasis in original).