(Dissenting.) I dissent from the result and disagree with the reasoning of the majority.
I agree with the trial judge, the Honorable J. Tom Merriam, who held that the demand made by plaintiff under sec. 804.11(1) (b), Stats., that the defendant and her insurer admit she was 70 percent causally negligent was not a proper subject area for demand.
The purpose of request for admissions is to define and limit the matter in controversy between the litigating parties. The rule saves the parties the time and effort of proving facts that will not be disputed at trial. See generally Harvey, Rules of Civil Procedure, Vol. 3, secs. 4166-4170 (1975).1
Sec. 804.11(1), Stats., permits requests to encompass “the truth of any matters within the scope of s. 804.01 (2) . . . .” Sec. 804.01 (2) (a) permits discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action, . . .” or information which “appears reasonably calculated to lead to the discovery of admissible evidence.” In Graczyk, P., The New Wisconsin Rules of Civil Procedure Chapter 804, 59 Marq. L. Rev. 517 (1976), the new rule was interpreted as follows:
“The new rule enlarges the range of matters as to which an admission can be sought. Under the former section, a party could seek admissions of only those facts ‘material in the action,’ whereas under the new rule, by explicit cross reference to section 804.04(2) [804.01(2)], admissions can be sought regarding all relevant non-privileged matters reasonably calculated to lead to the discovery of admissible evidence.” Id. at 520.
*241The finding of 70 percent causal negligence is not relevant in the usual sense, nor does it lead to the discovery of admissible evidence. It is a conclusion based on evidence and law. The demand does not fit within the limited scope of discovery in sec. 804.01(2), Stats.
In the same article, the author also notes that the rule “offers a much improved procedure for obtaining from a party admissions of facts and other items of proof over which there is no dispute and which can be costly and time-consuming to prove at trial.” Id. at 519. (Emphasis added.) The plaintiff contends that he should be allowed to make a causal negligence percentage demand, because it would expedite proof at the trial. Expedition alone is an insufficient reason if it leads to an injustice. This case represents a thoughtful and ingenious method by plaintiff’s counsel to reach a quick, inexpensive result without risking a jury determination. However, if this practice is condoned, it will likely become a routine request by attorneys and become an abusive tool in most negligence cases.
Permitting such requests would not expedite litigation. In fact, it would complicate and increase the amount of litigation. Should the defendants’ attorney in this case be held to an admission of 70 percent negligence by default by not denying the demand, the attorney would then probably be subjected to a malpractice suit brought by his client. To arrive at a damage figure, the client would have to prove the loss sustained caused by the attorney’s negligence. This would necessitate a full trial to determine the actual liability of the parties in the original action.
Modern procedure law is intended to replace the old, cumbersome style. However, the result in this case returns Wisconsin to the cat and mouse technique of winning a case not on its merits, but on the other parties’ failure to comply with procedural rules. I for one do *242not want to return to that morass. The purpose of sec. 804.11, Stats., is to narrow down the proof necessary for trial, not to win one’s case due to an attorney’s negligence. The rules provide for a variety of sanctions that can be imposed for failure to make discovery. Sec. 804.12. The rule is intended to be flexible. A court should only make such orders “as are just.” Sec. 804.12 (2) (a). I believe that in this case admitting causal negligence percentages is not just.
The majority relies on the confused reading of sec. 804.11(1), Stats., taken entirely from federal practice law (Federal Rule of Civil Procedure 36) and superimposes federal case law inappropriately on sec. 804.11(1). The language causing the confusion is “of the truth of any matters within the scope of s. 804.01(2) set forth in the request that relate to statements or opinions of fact or of the application of law to fact.” (Emphasis added.) That language could properly cause the federal courts to approve of requests for admissions whose answers may determine the outcome of a lawsuit and the majority cites federal cases for that proposition.
In my view, the majority’s reliance on the federal cases is misplaced. This court has taken the position that federal decisions construing the procedural counterparts of the Wisconsin Rules of Civil Procedure are persuasive, but are not controlling. Wilson v. Continental Insurance Cos., 87 Wis. 2d 310, 316, 274 N.W.2d 679 (1979). The cases have no precedential value and on this particular issue are not persuasive. They are easily distinguishable since the federal system does not embrace the doctrine of comparative negligence. The percentage evaluation of comparative negligence is a combination of fact and law unknown in federal law, at least as is relevant to this case.
We stated in Britton v. Hoyt, 63 Wis. 2d 688, 693, 218 N.W.2d 274 (1974), that while a trial court could de*243termine as a matter of law which party is more negligent, it may not assign exact percentages of liability. In Britton, the jury found each party 50 percent causally negligent, denying recovery to each party.2 The trial court improperly changed the apportionment of negligence to 30 percent for the plaintiff, Britton, and 70 percent for the defendant, thus allowing Britton to recover. This court held the trial judge could not apportion percentages of negligence. If the percentages of negligence are not a proper area for the court to make findings of negligence contrary to a jury determination, it certainly follows that a judge cannot determine percentages of causal negligence because a party fails to answer a request for admission.
Sec. 804.11(1) (b), Stats., states: “The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter.” The only reason for denying a negligence evaluation request is that the answering party disagrees. But according to the statute, such a response is improper. The statute goes on stating:
“An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he or she had made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.”
How does a defendant make such an inquiry when such information is not available until the trier of fact has spoken? It is apparent this statute should not be applicable to requests for percentages of causal negligence.
Sec. 804.11(2), Stats., also states the “court may permit withdrawal or amendment when the presentation *244of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits.” Clearly, presentation of the merits was served in this case by allowing the liability issue to go to the jury rather than allow it to stand admitted. This is especially so since the jury reached an opposite conclusion of the request. Regarding the criteria of prejudice, the plaintiff could have properly requested an adjournment, but failed to do so. Had the plaintiff made such a request, an award of costs for preparation and terms for the adjournment assessed against the defendant would have been proper. There is nothing in this record to indicate that the judge would not have delayed the trial had he been asked. Nor does the record show any adjournment, had one been granted, would have necessitated a long delay. Judges give preference to rescheduling adjourned cases if their calendars allow it.
The practice of law suffers greatly with this decision. Each party will now attempt to wear down the other and catch them in a fatal trap of inadvertence and error. Litigants will suffer, as well as trial judges who will be required to rule on the sufficiency of answers or objections (sec. 804.11(1) (c), Stats.) on matters incapable of determination by anyone other than the trier of fact.
Let it be said the enemy of orderly legal procedure has been met and we are it. I believe this confusion stems largely from this state’s decision to adopt the Federal Rules of Civil Procedure except for minor alterations, and superimpose it on Wisconsin’s nuances of law without a careful analysis of the consequences.
I dissent.
I am authorized to state that CHIEF JUSTICE BEIL-FUSS joins in this dissenting opinion.
“Strictly speaking, Rule 804.11 is not a discovery procedure at all, since it presupposes that the party proceeding under it knows the facts or has the document and merely wishes his opponent to concede their genuineness. If a party desires to discover what the facts are, he should resort to other discovery Rules rather than Rule 804.11.” Harvey at 394.
At the time of Britton, equal apportionment of negligence percentages denied recovery to both parties.