¶ 56. (dissenting). The issue presented is whether the defendants *572Schrimpf and Pratchet are jointly and severally liable under Wis. Stat. § 895.045(2) for their combined 28 percent causal negligence for the plaintiffs injury. These two engaged in a common scheme or plan to procure alcohol for an underage drinker (Zimmerlee, the driver-defendant with 72 percent causal negligence) who became intoxicated and caused damage to an innocent third party (the plaintiff) by the intoxicated use of a motor vehicle. In other words, the issue is whether Schrimpf is liable to the plaintiff not only for the damages attributed to his causal negligence but also for the damages attributed to Pratchet's causal negligence. , •
¶ 57. I agree with Judge Fine's short, simple and cogent dissent in the court of appeals. Judge Fine wrote that Wis. Stat. § 895.045(2) is plain and unambiguous and should be applied according to its text; it should be applied as enacted by the legislature, not as rewritten by the court.
¶ 58. I agree with Judge Fine that the court of appeals' majority opinion "overly complicated a simple matter by attempting to read the tea leaves of cases and concepts that are not on point.. . ,"1 This same criticism applies to the majority opinion by this court, which largely adopts the reasoning of the majority opinion in the court of appeals.
¶ 59. The plain language of Wis. Stat. § 895.045(2) is that parties acting in accordance with a common scheme or plan are jointly and severally liable to the plaintiff for all the damages resulting to the plaintiff from that common scheme or plan. Wisconsin Stat. § 895.045(2) provides in full .as follows:
*573(2) Concerted action. Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.043(5).
¶ 60. The parties, the circuit court, and the majority opinion2 agree that Schrimpf and Pratchet acted in accordance with a common scheme or plan to procure alcohol beverages for the underage driver in the present case. Furthermore, the parties, the circuit court, and the majority opinion3 agree that Schrimpf and Pratchet's procurement of the alcohol was tortious. Schrimpf and Pratchet stipulated that each was a "provider" of alcohol beverages to the underage driver for purposes of Wis. Stat. § 125.035(4), that is, that they each "procure [d] alcohol beverages for ... an underage person in violation of s. 125.07(l)(a)."4
¶ 61. The parties, the circuit court, and the majority opinion5 also agree that Schrimpf and Pratchet's *574procurement of the alcohol caused damages to the plaintiff. Schrimpf and Pratchet stipulated that each was "causally negligent" with respect to the plaintiffs damages. Schrimpf and Pratchet stipulated that their combined negligence caused 28 percent of the total damages suffered by the plaintiff.6
¶ 62. Under these circumstances, the plain language of Wis. Stat. § 895.045(2) permits only one result: It provides that Schrimpf and Pratchet shall be jointly and severally liable for "all" damages resulting from their common scheme or plan to procure alcohol for the underage driver. No one disputes that 28 percent of the plaintiffs damages resulted from Schrimpf and Pratchet's procurement of alcohol for the underage driver. Wisconsin Stat. § 895.045(2) thus requires, about as clearly as any statute could, that Schrimpf and Pratchet be jointly and severally liable for 28 percent of the plaintiffs total damages.
¶ 63. The majority opinion errs, as Judge Fine stated, in concluding that the question whether a common scheme or plan has resulted in damages for purposes of joint and several liability under Wis. Stat. § 895.045(2) is different from the question whether a *575common scheme or plan has resulted in damages for purposes of tort liability to the plaintiff. In other words, the majority opinion has concluded that Wis. Stat. § 895.045(2) changes the Wisconsin law on causation.7 Nothing in the text of Wis. Stat. § 895.045(2) states that the legislature is altering or modifying the substantial factor test of causation, as the majority opinions opine.
¶ 64. The end! No more need be said.
¶ 65. I write more, however, because in addition to ignoring the text of the statute, the majority opinion rests, as Judge Fine recognizes, on "concepts that are not on point." The majority opinion errs by listening to the siren song of concerted action. The majority opinion errs by applying the common law doctrine of "concerted action" in a context in which it does not apply. The concept of concerted action in the Restatement (Second) of Torts § 876 and in the cases (upon which the majority opinion relies) is not on point in interpreting and applying Wis. Stat. § 895.045.
¶ 66. Concerted action in the Restatement and in the cases is a substantive rule of tort liability to determine which of multiple actors are causally negligent and liable to an injured plaintiff. Concerted action under the Restatement and in these cases relates to a theory of liability.8
*576¶ 67. The majority opinion lifts the doctrine of concerted action and applies it in a different legal context, namely in the allocation of damages among those tortfeasors already found at fault. Wisconsin Stat. § 895.045(2) does not determine fault; it apportions damages after liability has been determined.
¶ 68. The majority opinion compounds its mistake of applying the substantive doctrine of concerted action by treating the doctrine as one departing from Wisconsin's law of causation. According to the majority *577opinion, joint and several liability under Wis. Stat. § 895.045(2) applies only to tortfeasors who act in accordance with a common scheme or plan that is the direct and particular cause of the plaintiffs damages, rather than merely a cause of the plaintiffs damages. The majority opinion requires that damages be the direct and particular result of the common scheme or plan for purposes of § 895.045, rather than merely a result of the common scheme or plan.9
¶ 69. The majority opinion declares that for purposes of joint and several liability under § 895.045(2) the common scheme to procure the alcohol beverage in the instant case did not result in the plaintiffs damages, notwithstanding the parties' stipulation that the procurement of alcohol was a cause of damages to the plaintiff and that the providers were liable for their causal negligence. The majority opinion concludes that for purposes of joint and several liability under § 895.045(2), the only cause of the plaintiffs damages was the underage drinker's consumption of alcohol to the point of intoxication and subsequent decision to drive while intoxicated.
¶ 70. The majority opinion's reasoning is explained in a simple way in the third-party brief of the Wisconsin Insurance Alliance and Property Casualty *578Insurers Association of America. The brief urges that the words "that action" in Wis. Stat. § 895.045(2) mean that joint and several liability is applicable only in those cases where the damages result solely from the tortfea-sors who act in accordance with a common scheme or plan. Applying this interpretation to the present case, the Alliance's brief concludes that "[i]n this case, the concerted action, or 'that action,' was buying beer, but the harm resulted from drunk driving — conduct different from 'that action.' "10
¶ 71. I do not know on what basis the majority opinion determines that the common-law doctrine of concerted action (or Wis. Stat. § 895.045(2), which the majority opinion concludes is a codification of the common-law doctrine) applies only when damages result solely from acts that the tortfeasors undertake in accordance with a common scheme or plan. The majority opinion fails to cite any authority in support of its determination that for purposes of § 895.045(2), the plaintiff suffered no damages because of the defendants' common scheme or plan to procure alcohol.11 Even assuming that the majority opinion is correct to apply the substantive doctrine of concerted action to the present case, it does not appear that this doctrine distinguishes between "a" cause and "the" cause in the manner that the majority opinion does. The majority opinion cites no case or treatise dealing with a situation similar to the present case, in which the defendants' common scheme or plan caused some but not all of the plaintiffs damages.
*579¶ 72. In contrast to the majority opinion, I conclude that Wis. Stat. § 895.045 uses the concept of defendant tortfeasors acting in accordance with a common scheme or plan to allocate damages among the multiple tortfeasors already found to be at fault, not to determine (as § 876 of the Restatement does) whether each actor is liable to the plaintiff under a theory of liability. The multiple tortfeasors in the present case have been identified as contributing to a single injury and the responsibility of each is based upon the causal fault. In other words, tort liability has already been decided when § 895.045 is applied. I conclude that under § 895.045, Schrimpf is liable for damages attributed to Pratchet's causal negligence.
¶ 73. Several factors support the position I espouse.
¶ 74. First, the text of Wis. Stat. § 895.045 supports my view of "concerted action." Wisconsin Stat. § 895.045(1) modifies the common-law rule of joint and several liability. The common-law rule regarding joint and several liability allowed a plaintiff (who was not negligent) to recover the total judgment against any defendant who was liable — regardless of how much fault was attributable to that tortfeasor. Section 895.045(1) limits the plaintiffs recovery from a tortfea-sor whose causal negligence is less than 51 percent to the percentage of the total causal negligence attributed to that person. Ordinarily, Wis. Stat. § 895.045(1) would preclude the plaintiff from recovering Pratchet's 14 percent share of liability from Schrimpf.
¶ 75. Wisconsin Stat. § 895.045(2), however, provides an exception to the statutory modification of joint and several liability. Subsection (2) provides that if 2 or more parties act in accordance with a common scheme *580or plan, those parties are jointly and severally liable for all damages resulting from that action.
¶ 76. The phrase "concerted action" does not appear in the text of Wis. Stat. § 895.045. The phrase is in the title to § 895.045(2). The phrase "concerted action" in the title to § 895.045(2) is obviously a shorthand for the lengthier statutory language "act in accordance with a common scheme or plan."12 The concept of concerted action can play a role in § 895.045. The substantive law of concerted action may be used to interpret whether the defendant tortfeasors acted in accordance with a common scheme or plan under § 895.045(2).13
¶ 77. Section 895.045(1) and (2) provide as follows:
(1) Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is *581limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.
(2) Concerted action. Notwithstanding sub. (1), if 2 or more parties act in accordance with a common scheme or plan, those parties are jointly and severally liable for all damages resulting from that action, except as provided in s. 895.043(5).
¶ 78. As I see it, Wis. Stat. § 895.045 directs that each of the multiple actors who has acted in accordance with a common scheme or plan and whose causal negligence has been apportioned at less than 51 percent is liable to the plaintiff not only for his or her own share of causal negligence but also for the share of causal negligence of another defendant with whom he acted in concert. Rather than decide the substantive tort liability of multiple actors, § 895.045 apportions damages after the liability of the multiple tortfeasors has already been determined. Section 895.045 does not change causal negligence.
¶ 79. Second, the court of appeals in Danks v. Stock Building Supply, Inc., 2007 WI App 8, ¶ 39, 298 Wis. 2d 348, 727 N.W.2d 846, is in accord with my interpretation, correctly describing Wis. Stat. § 895.045(2) as follows:
Wisconsin Stat. § 895.045(1) sets forth Wisconsin's law of comparative negligence, specifying when a negligent plaintiff may recover from a negligent defendant. It also spells out Wisconsin law regarding joint and several liability among defendants, specifying when a given defendant may become liable for all damages assessed against multiple tortfeasors. Thus § 895.045(2) applies only after a judge or jury has determined, under appli*582cable substantive law, that more than one tortfeasor is liable in some measure to the plaintiff. Subsection (2) simply modifies subsection (1) of the statute to provide that all defendants who are legally responsible for causing a plaintiffs damages, and who acted in concert in so doing, are jointly and severally liable for the plaintiffs ■damages, irrespective of whether a given defendant’s apportioned causal negligence is less than 51%.
¶ 80. Third, other states have similarly interpreted "concerted action" in joint and several liability statutes. The North Dakota Supreme Court, for example, held that its joint and several liability statute with a special provision for "concerted action" "does not create an independent basis of liability, rather it deals with the allocation of damages among those already at fault."14
¶ 81. Fourth, my interpretation of Wis. Stat. § 895.045(2) comports with Restatement (Third) of the Law of Torts: Apportionment of Liability § 15 (2000), *583which does not replace Restatement (Second) § 876, but is an addition thereto. Section 15 provides for apportionment of liability when persons act in concert as follows:
When persons are liable because they acted in concert, all persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.
¶ 82. Comment a explains that § 15 applies when the "governing law determines that concerted activity took place and that the tortious acts of one or more of the participants in the concerted activity was a legal cause of the plaintiffs indivisible injury."15 The comment further explains that "[t]he joint and several liability of those engaged in concerted activity is for the total comparative responsibility assigned to all who engage in the concerted activity."16 The Reporters' Note to § 15 of the Restatement (Third) of Torts: Apportionment of Liability interprets Wis. Stat. § 895.045 as retaining "full joint and several liability for concerted actors."17 According to the comment, the American Law Institute does not take a position on "whether a concerted-action tortfeasor is also jointly and severally liable for the share of comparative responsibility assigned to an independent tortfeasor who is also liable for the same indivisible injury."18
*584¶ 83. Fifth, my interpretation of Wis. Stat. § 895.045(2) also comports with Reilly v. Anderson, 727 N.W.2d 102 (Iowa 2006), in which the Iowa Supreme Court had to decide whether the theory of concerted action is compatible with statutory comparative fault principles.19 The Iowa court explained, 727 N.W.2d at 109, that where an independent party (such as the underage drunken driver in the present case) had been assigned 55 percent fault and concerted actors #1 and #2 (here Schrimpf and Pratchet) had been assigned fault of 35 percent and 10 percent respectively, the concerted actors would at least be jointly and severally liable for 45 percent of plaintiffs damages. The Iowa court did not decide whether the concerted actors would be jointly and severally liable for the entire fault assigned to all defendants in the fact situation described.
¶ 84. For the reasons set forth, I dissent.
¶ 85. I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this opinion.
Richards v. Badger Mut. Ins. Co., 2006 WI App 255, ¶ 35, 297 Wis. 2d 699, 727 N.W.2d 69 (Fine, J., dissenting).
See majority op., ¶ 51.
See majority op., ¶ 10.
Wisconsin Stat. § 125.035(4)(a) provides in full as follows:
In this subsection, "provider" means a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to an underage person in violation of s. 125.07(l)(a).
Schrimpf and Pratchet's act of procurement was proscribed by Wis. Stat. § 125.07(l)(a)l., providing that "[n]o person may procure for, sell, dispense or give away any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age."
When a person is a "provider" for purposes of Wis. Stat. § 125.035(4)(a), such person is not immune to civil liability arising out of the person's act of procuring alcohol beverages. See Wis. Stat. § 125.035(2), (4)(b).
See majority op., ¶ 11.
The parties stipulated that the plaintiffs total damages were $1,785,714.29. The parties further stipulated that the underage driver-defendant's share of the causal negligence was 72 percent, Schrimpfs share was 14 percent, and Pratchet's share was 14 percent.
The plaintiff has settled all claims against the driver, recovering $1,285,714.29 and satisfying 72 percent of the plaintiffs damages. The plaintiff has recovered $250,000 (that is, 14 percent of her total damages) from Schrimpf. The plaintiff seeks in the current action to recover $250,000 from Schrimpf for the remaining 14 percent causal negligence attributable to Pratchet.
Compare majority op., ¶ 11 (conceding that Schrimpf and Pratchet's negligent act of procuring alcohol for the underage driver resulted in 28 percent of damages to the plaintiff for purposes of liability to the plaintiff) with majority op., ¶ 54 (concluding that Schrimpf and Pratchet's procurement of alcohol for the underage driver did not result in damages to the plaintiff for purposes of § 895.045(2)).
Section 876 of the Restatement (Second) of Torts (1979) is a specific application of the rule stated in § 875 of the Restatement, which provides as follows:
*576Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm.
Comment c explains that § 875 is consistent with the rules of causation in negligence; any one of a number of persons whose tortious conduct is a substantial factor in causing harm is liable for the harm in the absence of a superseding cause.
Section 876 of the Restatement provides in relevant part as follows:
For'harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... does a tortious act in concert with the other or pursuant to a common design with him....
The Wisconsin cases upon which the majority relies similarly treat the common law doctrine of "concerted action" as a rule to determine causal negligence. See Bruttig v. Olsen, 154 Wis. 2d 270, 280, 453 N.W.2d 153 (Ct. App. 1989) (stating that concerted action is "a separate theory of liability"); Collins v. Eli Lilly Co., 116 Wis. 2d 166, 185, 342 N.W.2d 37 (1984) ("The concerted action theory typically is applied to situations in which ... a particular defendant is already identified as causing the plaintiffs harm, and the plaintiff desires to extend liability to those acting in league with that defendant.") (citation omitted); Ogle v. Avina, 33 Wis. 2d 125, 133-35, 146 N.W.2d 422 (1966) (participant in a drag race causally negligent even though plaintiffs injuries were caused most directly by another participant in the race).
The test of cause in Wisconsin is whether the defendant's negligence was a substantial factor in producing the injury. It need not he the sole factor or the primary factor, only a 'substantial factor.' The phrase 'substantial factor' denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense. There may be several substantial factors contributing to the same result. Clark v. Leisure Vehicles, Inc., 96 Wis. 2d 607, 617-18, 292 N.W.2d 630 (1980) (internal citations omitted).
Non-party Brief of Wisconsin Insurance Alliance & Property Casualty Insurance Association of America at 5.
See majority op., ¶ 51.
Several states apparently have adopted the concept of "concerted action” as an exception to the modification of joint and several liability. Richard W Wright, Allocating Liability Among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm, and Risk Exposure, 21 U. C. Davis L. Rev. 1141, 1168 (1987-88). See, e.g., Idaho Code Ann. § 6-803 (2004); N.D. Cent. Code § 32-03.2-02 (2006).
See Hurt v. Freeland, 589 N.W.2d 551, 557 (N.D. 1999).
Hurt v. Freeland, 589 N.W.2d 551, 557 (N.D. 1999).
North Dakota has a statute similar to Wis. Stat. § 895.045(2). The North Dakota statute provides in part (and provided at the time of the Hurt decision):
When two or more parties found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.
N.D. Cent. Code § 32-03.2-02 (2006) (emphasis added).
Restatement (Third) of the Law of Torts: Apportionment of Liability § 15, cmt. a at 129 (2000).
Id.
Restatement (Third) of the Law of Torts: Apportionment of Liability § 15, reporters' note at 131 (2000).
Restatement (Third) of the Law of Torts: Apportionment of Liability § 15 at 129 (2000).
The Iowa statute provided that joint and several liability attaches only to those persons, excluding the plaintiff, who are found 50 percent or more at fault. The statute was silent about concerted action.