¶ 44. (concurring). I agree that the cause should be remanded for a new trial on damages.
¶ 45. Our case law and the Restatement (Second) of Torts, upon which our case law substantially relies, make clear, as the majority opinion explains, that a tortfeasor is liable for damages sustained by an injured plaintiff when being treated for an injury sustained in the collision at issue.
¶ 46. The problem in the instant case is that Caldwell et al., the defendants, may have tried to put *171forth two different theories of nonliability. Under one theory, the surgery was performed as treatment for injuries sustained in the collision, but the surgery was unnecessary. Selleck clearly forecloses this defense.
¶ 47. The defendants may have also tried to advance a second theory, that is, that the surgery, necessary or not, was performed not to treat the injuries Hanson, the plaintiff, sustained in the collision at issue, hut, rather, to treat an injury Hanson sustained at some other time. This theory, however, was not well developed by the defendants and was blended with the argument that the surgery was simply unnecessary. See majority op., ¶¶ 37-38 and the trial transcript quoted therein. The court of appeals clearly saw that the defendants' arguments were intertwined, overlapping, and confusing, and ultimately concluded, as has the majority opinion, that the record raised the Selleck issue: "The only issues were whether Hanson was injured by the accident, and the extent of those alleged injuries. Caldwell's theory of the case was that the impact could have been great enough to cause a strain, but was not great enough to cause structural damage necessitating surgery. Thus, Caldwell argued, the surgery was unnecessary." Hanson v. Am. Family Mut. Ins. Co., No. 2004AP2065, unpublished slip op., ¶ 6 (Wis. Ct. App. Nov. 8, 2005).
¶ 48. We are thus left with a muddled defense and a muddled record. I am therefore satisfied that the majority opinion correctly concludes that on the record before the court, the Selleck rule applies and the plaintiff is entitled to a new trial on the issue of damages.
¶ 49. For the reasons set forth, I concur.