749 N.W.2d 581 (2008) 2008 WI 52

Michelle RICHARDS, Plaintiff-Respondent-Petitioner,
v.
BADGER MUTUAL INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Appellant.
David Schrimpf, Defendant-Third-Party Plaintiff,
v.
Tomakia Pratchet, Third-Party Defendant.

No. 2005AP2796.

Supreme Court of Wisconsin.

Argued October 4, 2007. Decided June 3, 2008.

*583 For the plaintiff-respondent-petitioner there were briefs by James J. Murphy, *584 Keith R. Stachowiak and Murphy & Prachthauser, Milwaukee, and oral argument by Keith R. Stachowiak.

For the defendant-third-party plaintiff-appellant there was a brief by Eric S. Darling and Schmidt, Darling & Erwin, Milwaukee, and oral argument by Eric S. Darling.

An amicus curiae brief was filed by Ralph A. Weber, Beth Ermatinger Hanan and Gass Weber Mullins LLC, Milwaukee, and oral argument by Ralph A. Weber, on behalf of Civil Trial Counsel of Wisconsin.

An amicus curiae brief was filed by James A. Friedman, Joshua P. Dau and Godfrey & Kahn S.C., Madison, on behalf of the Wisconsin Insurance Alliance and the Property Casualty Insurers Association of America, and oral argument by James A. Friedman.

An amicus curiae brief was filed by William C. Gleisner, III, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1 PATIENCE DRAKE ROGGENSACK, J.

We are asked to review a decision of the court of appeals that reversed the circuit court's decision,^[1] which concluded that the stipulated facts of this case present a "common scheme or plan" that invokes joint and several liability under Wis. Stat. § 895.045(2) (2005-06).^[2] We affirm the court of appeals.

¶ 2 We conclude as follows: (1) Wis. Stat. § 895.045(2) is the legislative codification of the concerted action theory of liability; (2) the damages in this case resulted from the consumption of beer to the point of intoxication and the subsequent decision to drive while intoxicated; and (3) although Robert Zimmerlee, David Schrimpf, and Tomakia Pratchet acted "in accordance with a common scheme or plan" to procure beer, they did not so act in consuming beer to the point of intoxication and in the subsequent act of driving while intoxicated, and, therefore, David Schrimpf is not jointly and severally liable under § 895.045(2) for the death of Chris Richards. Accordingly, Badger Mutual Insurance Company is relieved from making any further payment to Michelle Richards.

I. BACKGROUND

¶ 3 An ill-conceived idea between teenagers to "get some beer" one evening culminated in tragedy the next morning when an intoxicated Robert Zimmerlee, 19, failed to stop for a stop sign and smashed into the driver's side of Christopher Richards' vehicle, killing him instantly. Chris' wife, Michelle Richards (Richards), sought to recover damages. She initially pursued a negligence claim against Zimmerlee and his insurer. The parties settled on a Pierringer^[3] basis for $1,312,500,^[4] and Zimmerlee is therefore not a party to this appeal. After Richards received the settlement, she then brought a wrongful death action against David Schrimpf, 19, who was the passenger in Zimmerlee's car, and Schrimpf's insurer, Badger Mutual Insurance Company, pursuant to Wis. Stat. § 895.04. Richards alleged that Schrimpf illegally procured beer and that Zimmerlee's consumption of the beer resulted in Christopher Richards' wrongful death. *585 Schrimpf joined Tomakia Pratchet, who purchased the beer for Zimmerlee and Schrimpf, in the litigation.

¶ 4 The parties have stipulated to the facts in this case. Events leading to the accident unfolded the prior evening, when Schrimpf and Zimmerlee decided to "go get some beer." Schrimpf was employed at a West Allis restaurant, and he said that one of his co-workers, Pratchet, would be able to purchase the beer for them because she was of-age.

¶ 5 Zimmerlee and Schrimpf drove together to Schrimpf's employer, where Pratchet was working that evening. Schrimpf entered and spoke with Pratchet about her purchasing beer for him and Zimmerlee. Pratchet agreed. Schrimpf also spoke with another co-worker, Jennifer Spencer, who invited Schrimpf to a party at her home that evening.

¶ 6 From the restaurant, Zimmerlee, Schrimpf, and Pratchet traveled together to a nearby grocer, where Pratchet purchased an 18-pack of beer for Zimmerlee and Schrimpf with money Zimmerlee provided. The two dropped Pratchet off at a bus stop and Zimmerlee and Schrimpf went their separate ways for several hours, with the beer remaining in Zimmerlee's car.

¶ 7 Later that evening, Schrimpf and Zimmerlee reconnected, and with 18-pack in tow, arrived at Spencer's party between 12 midnight and 1:00 a.m. While Schrimpf drank "some" of the beer, Zimmerlee consumed "maybe half" of the 18 beers.

¶ 8 At approximately 7:30 a.m., the duo left Spencer's party. Schrimpf sat in the passenger seat, and Zimmerlee took the wheel of his car. They proceeded only half a block before colliding with Chris Richards' vehicle.

¶ 9 Two days before trial was set to commence, the parties entered into a settlement agreement. By the terms of that settlement agreement, the jury trial was waived and the parties agreed to allow the circuit judge to decide the question of whether Zimmerlee, Schrimpf, and Pratchet acted in accordance with a common scheme or plan that caused damage to Chris and Michelle Richards. The circuit court answered that question in the affirmative and held the parties jointly and severally liable for Richards' damages.

¶ 10 There is no dispute that Zimmerlee was negligent in the operation of his vehicle and that his negligence was a cause of the accident and death of Chris Richards. There is also no dispute that the beer was a substantial factor in causing the accident and the death. Both Schrimpf and Pratchet were "providers" of alcoholic beverages to Zimmerlee, as defined by Wis. Stat. § 125.035(2) and were therefore negligent under Wis. Stat. § 125.07(1)(a).

¶ 11 The parties also agreed to the apportionment of causal negligence among them: Zimmerlee at 72 percent; Schrimpf at 14 percent; and Pratchet at 14 percent. The parties stipulated to Richards' damages and that Schrimpf's and Pratchet's combined causal negligence resulted in $500,000 of the total damages, or $250,000 each. Accordingly, the parties agreed that Richards was to be paid $250,000, as Schrimpf's share of the total damages, regardless of the outcome of this lawsuit. If the final court decision in this case concluded that the parties did not act in accordance with a common scheme or plan that resulted in Richards' damages, Richards would not receive the 14 percent of the damages that remained unpaid. If, however, it was concluded that the parties did act in accordance with such common scheme or plan that caused Richards' damages, then Schrimpf and Pratchet would be jointly and severally liable to Richards and, therefore, Schrimpf, and thereby *586 Badger Mutual, would be required to pay Richards an additional $250,000 to cover the remainder of the damages.

¶ 12 What the parties dispute is whether the foregoing stipulated facts give rise to joint and several liability under Wis. Stat. § 895.045(2). The parties contest whether Zimmerlee, Schrimpf, and Pratchet acted in accordance with a common scheme or plan that resulted in Richards' damages, as those terms are used in § 895.045(2).

¶ 13 The court of appeals concluded that the parties were not jointly and severally liable under Wis. Stat. § 895.045(2) for Richards' damages. It held that, although the parties "had an agreement to purchase alcohol," that agreement did not include Zimmerlee's driving while intoxicated, which resulted in the damages. Richards v. Badger Mut. Ins. Co., 2006 WI App 255, ¶ 27, 297 Wis.2d 699, 727 N.W.2d 69. Richards petitioned for review, which we granted.

II. DISCUSSION

A. Standard of Review

¶ 14 The outcome of this case hinges on the interpretation and application of Wis. Stat. § 895.045(2). The interpretation and application of a statute are questions of law that we review independently, "but benefiting from the analyses of the court of appeals and the circuit court." Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.

B. The Parties' Positions

¶ 15 Both parties posit that Wis. Stat. § 895.045(2) is unambiguous; however, they offer differing interpretations and applications of it under the facts before us. Before turning to a discussion of the language of the statute, it is instructive to recount briefly the parties' respective arguments.

1. Richards' position

¶ 16 Richards argues that the parties agree that Zimmerlee, Schrimpf, and Pratchet acted in accordance with a common scheme or plan to purchase beer. She also asserts that the parties agree that "as a result of drinking the beer bought for [Zimmerlee] pursuant to his and Schrimpf's joint scheme and plan, Zimmerlee killed Mr. Richards by the intoxicated use of his vehicle." Further, Richards asserts that the parties have stipulated that the beer was a substantial factor in the cause of Chris Richards' death. Richards refers to Judge Fine's dissent as a succinct presentation of her argument: The stipulated facts require the conclusion that Chris Richards "would not have been killed by Zimmerlee if Zimmerlee had not been drunk as a result of drinking alcohol [bought] for him by Pratchet." Richards, 297 Wis.2d 699, ¶ 34, 727 N.W.2d 69 (Fine, J., dissenting). Richards contends that those facts evidence a common scheme or plan that falls within Wis. Stat. § 895.045(2), resulting in joint and several liability for all three defendants.

¶ 17 Furthermore, Richards argues that cannons of statutory interpretation preclude this court's consideration of the title of Wis. Stat. § 895.045(2), "Concerted action," when interpreting the statute. Richards argues that, because the statute is plain on its face, it is improper for the court to consider extrinsic sources to facilitate its interpretation, and because Wisconsin law provides that titles of statutes are not part of the statute, the title to § 895.045(2) is an extrinsic source. The import of Richards' argument in this regard is twofold: (1) we have not adopted the concerted action theory of liability, as embodied in Restatement (Second) of *587 Torts § 876, even though it is incorporated into Wisconsin Jury Instruction 1740 that attends § 895.045(2). Therefore, the so-called, but misnamed, "concerted action cases" that predate § 895.045(2) provide no guidance in interpreting the statute; and (2) the enactment of § 895.045(2) did not alter the law in Wisconsin that causal negligence is predicated on whether an act or omission is a substantial factor in causing harm. Here, it was stipulated that the beer was a substantial factor in causing the accident that killed Chris Richards.

2. Badger Mutual's position

¶ 18 In response, Badger Mutual argues that, while Richards correctly asserts that the statute is unambiguous, Richards nevertheless misapprehends the statute's meaning. First, Badger Mutual contends that "Concerted action" is the title for the theory of liability described in Wis. Stat. § 895.045(2), as shown by the discussions in Wisconsin cases. Badger argues that because the concerted action theory of liability embodied in § 895.045(2) is the concerted action referred to in Wisconsin case law, subsection (2) requires that all parties have equal causal negligence. Consequently, because the parties stipulated to apportionment of causal negligence among Zimmerlee, Schrimpf, and Pratchet, their liability to Richards falls within subsection (1), not within subsection (2) of § 895.045.

¶ 19 Second, Badger Mutual acknowledges that while Schrimpf's conduct was a substantial factor in causing the accident, it did not also constitute concerted action, as is required before it falls within Wis. Stat. § 895.045(2). Badger Mutual contends that the Restatement (Second) of Torts § 876 and the common law in regard to concerted action support its position. Badger Mutual contends that the common scheme or plan to purchase beer did not damage Chris Richards. It was the reckless driving while intoxicated that resulted in damage to Chris Richards. However, the reckless driving was not part of a common scheme or plan in which Zimmerlee, Schrimpf, and Pratchet participated. Accordingly, it concludes that Schrimpf's liability to Richards falls within the parameters of § 895.045(1), not those of subsection (2).

C. Interpretation of Wis. Stat. § 895.045(2)

1. General principles

¶ 20 Statutory interpretation "begins with the language of the statute." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis.2d 211, 612 N.W.2d 659). We assume that the meaning of a statute is expressed in the words the legislature chose. Id., ¶ 44. The context in which the operative language appears is important too because a statute's meaning may be affected by the context in which the words chosen by the legislature are used. Id., ¶ 46. If our focus on the statute's language yields a plain, clear meaning, then there is no ambiguity, and the statute is applied according to its plain terms. Id. If the statutory language is unambiguous, it is unnecessary to consult extrinsic sources to facilitate interpretation. Id.

¶ 21 However, if a statute is "capable of being understood by reasonably well-informed persons in two or more senses[,]" then the statute is ambiguous. Id., ¶ 47. When a statute is ambiguous, we may resort to extrinsic sources, such as legislative history, to assist our understanding of the statute's meaning. Id., ¶ 48.

*588 2. Statutory history

¶ 22 A review of statutory history is part of a plain meaning analysis. Id., ¶ 69. Statutory history encompasses the previously enacted and repealed provisions of a statute. By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute. Id. Therefore, statutory history is part of the context in which we interpret the words used in a statute. Accordingly, we examine the statutory history that underlies the current version of Wis. Stat. § 895.045.

¶ 23 The early common law rule of contributory negligence that existed prior to 1931, when the predecessor to Wis. Stat. § 895.045(1) was enacted, required that any contributory negligence of a plaintiff was a complete bar to recovery. Brewster v. Ludtke, 211 Wis. 344, 346, 247 N.W. 449 (1933). Also at common law, joint and several liability was the rule, such that when multiple tortfeasors caused injury to a plaintiff who was not contributorily negligent, the plaintiff could recover his or her entire damages from any tortfeasor. Group Health Coop. of Eau Claire v. Hartland Cicero Mut. Ins. Co., 164 Wis.2d 632, 634-35, 476 N.W.2d 302 (Ct.App.1991).

¶ 24 In 1931, the legislature established statutory comparative negligence.^[5] This change in the law permitted a plaintiff who was contributorily negligent to recover damages if his or her negligence was less than the negligence of the person from whom recovery was sought. Lupie v. Hartzheim, 54 Wis.2d 415, 416, 195 N.W.2d 461 (1972). However, the adoption of comparative negligence did not change the common law rule of joint and several liability for the tortfeasors. Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 535, 252 N.W. 721 (1934).

¶ 25 In 1971, the legislature renumbered the comparative negligence statute to Wis. Stat. § 895.045. It continued to permit a plaintiff who was not more negligent than the defendant from whom recovery was sought to recover damages, reduced by the amount of the plaintiff's negligence.^[6] Once again, this change did not affect the common law rule of joint and several liability. Group Health, 164 Wis.2d at 637, 476 N.W.2d 302. Therefore, in suits involving multiple tortfeasors, a comparison of the negligence of the plaintiff with that of any tortfeasor continued to be made and the full amount of damages^[7] could be recovered from any tortfeasor who was more negligent than the plaintiff, even though a second tortfeasor may have been more negligent than the tortfeasor from whom recovery was sought. Matthies v. Positive Safety Mfg. Co., 2001 WI 82, ¶ 10, 244 Wis.2d 720, 628 N.W.2d 842.

¶ 26 The current version of Wis. Stat. § 895.045 was created by 1995 Wis. Act 17. That Act amended comparative negligence in subsection (1) and created subsection (2). In subsection (1), the legislature chose to significantly change the law of joint and several liability by limiting the circumstances under which joint and several liability could be applied. Id. The relevant portion of § 895.045(1) provides:

Comparative negligence. . . . The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. *589 The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited 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.

Under revised subsection (1), a contributorily negligent plaintiff is precluded from recovering more of his or her damages from a tortfeasor than the tortfeasor's causal negligence bears to the total causal negligence. Id. For those tortfeasors, the common law rule of joint and several liability is abrogated. See id. Only when a tortfeasor is at least 51 percent causally negligent will the tortfeasor be jointly and severally liable for all damages attributed to all tortfeasors in the comparisons made under subsection (1). Therefore, in many cases involving joint tortfeasors and a contributorily negligent plaintiff, there no longer is joint and several liability.

¶ 27 In amending Wis. Stat. § 895.045 in 1995, the legislature also created subsection (2). This subsection retains the common law rule of joint and several liability in the circumstances described in the statute. Subsection (2) provides:

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).^[8]

Subsection (2), which the legislature chose to title "Concerted action," retains the common law rule of joint and several liability, if "that action" is taken in accordance with a common scheme or plan resulting in damages. However, while demonstrating a legislative choice to significantly reduce the occasions where joint and several liability may be awarded, the statutory history underlying § 895.045 does not resolve the meaning of the terms, "common scheme or plan" and "that action" "resulting" in damages that are before us in this review. Nor does it shed light on the title of subsection (2), "Concerted action." However, it does inform us that the legislature meant to proscribe the occasions for imposition of joint and several liability.^[9]

3. Ambiguity

¶ 28 Richards urges us to interpret Wis. Stat. § 895.045(2) such that it applies to persons engaged in a common scheme or plan to accomplish a result that in combination with other acts ultimately causes harm. Richards asserts that common law concerted action is not what the legislature meant to describe in subsection (2). Badger Mutual contends that the action that causes the harm must be undertaken to facilitate the common scheme or plan^[10]*590 and that subsection (2) does embody common law concerted action. These competing interpretations of the terms and the title of § 895.045(2) are both reasonable interpretations. They indicate that the statute is "capable of being understood by reasonably well-informed persons in two or more senses" and is therefore ambiguous. Kalal, 271 Wis.2d 633, ¶ 47, 681 N.W.2d 110.

¶ 29 When confronted with an ambiguous statute, we may resort to extrinsic sources to help uncover the statute's meaning. Id., ¶ 48. The legislative history now available that relates to the creation of subsection (2) of Wis. Stat. § 895.045 is sparse. However, the Legislative Reference Bureau Analysis of an earlier version of the 1995 changes in § 895.045 that were eventually enacted states:

This bill modifies the comparative negligence system in several ways. The bill requires that the negligence of the plaintiff be measured separately against each of the joint tort-feasors. Under this bill, a joint tort-feasor's liability is limited to the percentage of the total causal negligence attributed to that party.

The bill specifies that the changes in the rule of joint and several liability do not apply to parties whose concerted action results in damages . . .

Drafting File for 1995 Wis. Act 17, Analysis by the Legislative Reference Bureau of 1995 S.B. 11, Legislative Reference Bureau, Madison, Wis. The LRB's analysis supports our conclusion that the 1995 changes to § 895.045 were meant to significantly change the common law rule of joint and several liability that had applied to negligence actions in the past. However, the legislative history provides limited guidance with respect to the statutory terms in subsection (2) that we must interpret.

¶ 30 The title is not part of a statute according to Wis. Stat. § 990.001(6); however, it may be used to assist in understanding a statute's meaning. Brennan v. Employment Relations Comm'n, 112 Wis.2d 38, 41, 331 N.W.2d 667 (Ct.App.1983). We note that the title to Wis. Stat. § 895.045(2) is "Concerted action." Concerted action is a theory of liability that comes from the common law, as do key words the legislature chose to use in subsection (2), such as "common scheme or plan." Accordingly, we review Wisconsin's common law and the learned treatises cited therein for guidance in interpreting the title and terms of subsection (2). See, e.g., Strenke v. Hogner, 2005 WI 25, ¶¶ 15, 16, 19, 279 Wis.2d 52, 694 N.W.2d 296 (explaining that the words used by the legislature in Wis. Stat. § 895.85(3) derive in large part from the common law; and therefore, a review of the common law is helpful to statutory interpretation).

4. Wisconsin appellate decisions

¶ 31 Four published appellate opinions offer potential guidance on the meaning of Wis. Stat. § 895.045(2). Danks v. Stock Bldg. Supply, Inc., 2007 WI App 8, 298 Wis.2d 348, 727 N.W.2d 846; Bruttig v. Olsen, 154 Wis.2d 270, 453 N.W.2d 153 (Ct.App.1989); Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984); and Ogle v. Avina, 33 Wis.2d 125, 146 N.W.2d 422 (1966).

¶ 32 Danks provides only the briefest interpretation of Wis. Stat. § 895.045(2). There, liability for a personal injury was at issue. Danks was injured while assisting his supervisor load a truss onto a truck *591 belonging to the manufacturer of the truss, Stock Building Supply. Danks, 298 Wis.2d 348, ¶ 1, 727 N.W.2d 846. Stock Building Supply had given specific written instructions that the truss was not to be lifted in the manner used at the time of the accident. Id., ¶ 6. When the truss failed due to the improper lift, it fell and Danks was injured. Id., ¶ 13.

¶ 33 Danks had several theories under which he attempted to impose liability on Stock Building Supply. One of those theories was concerted action liability, in which Danks contended that the lifting of the truss was undertaken in accordance with a common scheme or plan pursuant to Wis. Stat. § 895.045(2). Id., ¶ 38. The court of appeals decision concluding that Stock Building Supply was not liable turned on the lack of an affirmative act of negligence by Stock Building Supply. Id., ¶ 22.

¶ 34 However, Danks does interpret Wis. Stat. § 895.045(2) as pertaining only to tortfeasors who take concerted action. Id., ¶ 39. Danks does not discuss the meanings of "Concerted action" or "common scheme or plan," but it does note that those who act "in concert" will come within the parameters of subsection (2):

Subsection (2) simply modifies subsection (1) of the statute to provide that all defendants who are legally responsible for causing a plaintiff's damages, and who acted in concert in so doing, are jointly and severally liable for the plaintiff's damages, irrespective of whether a given defendant's apportioned causal negligence is less than 51%.

Id. Danks continues to conclude that "§ 895.045(2) plays no role to determine whether a given defendant may be held liable." Id., ¶ 40 (emphasis in original). Rather, a defendant must be liable before subsection (2) may be applied. Id. Stated otherwise, Danks determined that subsection (2) does not create a claim for relief, but instead applies only when a defendant is already liable for damages under the substantive law. That is, he or she is causally negligent to a greater extent than the plaintiff; and in addition, he or she participated in concerted action that resulted in the plaintiff's damages. Id., ¶¶ 39-40.

¶ 35 Collins precedes Danks and the 1995 revisions of Wis. Stat. § 895.045. There we discussed concerted action as a theory of liability and relied on the explanation of that theory by Professor Prosser. Collins, 116 Wis.2d at 184, 342 N.W.2d 37. In it we explained that:

The concerted action theory of liability rests upon the principle that "those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him. Express agreement is not necessary, and all that is required is that there be a tacit understanding."

Id. (quoting W. Prosser, Handbook of The Law of Torts § 46, at 292 (4th ed.1971)). However, we declined to apply the concerted action theory when the plaintiff, who sought damages from former manufacturers of the drug diethylstilbestrol (DES) that caused an aggressive form of cervical cancer, could not identify the specific manufacturer of the DES that was taken by her mother. Id. at 186, 342 N.W.2d 37.

¶ 36 Collins explained that the concerted action theory required an agreement among the parties. Id. at 185, 342 N.W.2d 37. The allegation of Collins was that the "defendants failed to adequately test [DES] or to give sufficient warning[s] of its dangers." Id. We noted that there had been "a substantial amount of parallel action by the defendants in producing and *592 marketing DES" but that activity did not "rise to the level of `acting in concert.'" Id. We so concluded because there was no agreement that the testing and warnings would be inadequate, and it was that type of "agreement" that would have been required to show concerted action caused the plaintiff's harm. Id.

¶ 37 Collins is helpful to our analysis. For example, the specificity of the subject matter of the common plan in Collins that we concluded was necessary to support the concerted action theory of liability is important to our consideration of the specificity of the subject matter of the common plan at issue in the case before us. That is, the action that harmed Collins must have been that which was undertaken to further the drug companies' agreement. Id. In addition, Collins equated "concerted action," the title of Wis. Stat. § 895.045(2) with "pursuance of a common plan," terms employed in the text of subsection (2). Id. at 184, 342 N.W.2d 37.

¶ 38 Bruttig also tackled the topic of concerted action. There the plaintiff, Brian Bruttig who was a minor, and two friends, also minors, engaged in a game of "snowmobile tag." Brian was injured and recovery was denied because his liability was greater than that of either of the other two tortfeasors. Bruttig, 154 Wis.2d at 273, 453 N.W.2d 153. On appeal, Brian argued that he and the two defendants were equally negligent "because the tag game created a situation of mutual stimulation where the negligence of each participant [was] entirely interrelated with that of the others and therefore each should be charged with the causal negligence of the other." Id. at 280, 453 N.W.2d 153. The court of appeals recognized the argument as the theory of concerted action liability in which "the jury would not be permitted to apportion damages." Id. (citing W. Prosser, Handbook of The Law of Torts § 46, at 291 (4th ed.1971)).

¶ 39 The court of appeals noted that the concerted action theory of liability has never been "explicitly adopted" in Wisconsin. Id. at 280, 453 N.W.2d 153. It also noted that Brian had not raised this theory of liability in the circuit court. Therefore, it rejected his argument to apply it on appeal. Id. at 281, 453 N.W.2d 153.

¶ 40 Bruttig's discussion is helpful, as it reviews Brian's claim that the three boys "acted in concert," which terms are similar to the title of subsection (2): "Concerted action." Bruttig acknowledges that the theory that Brian is proffering is "a separate theory of liability, that of `concerted action.'" Id. at 280, 453 N.W.2d 153. This is significant because Wis. Stat. § 895.045(2) requires proof of a separate theory of liability for one who may already be a tortfeasor under subsection (1), in order to accord joint and several liability. Danks, 298 Wis.2d 348, ¶ 39, 727 N.W.2d 846. That is, subsection (2) requires a plaintiff to prove that the tortfeasor acted "in accordance with a common scheme or plan" and also that the common scheme or plan the tortfeasor acted in accordance with resulted in damages. Id. Subsection (2) is not applicable in every case where joint tortfeasors are present.

¶ 41 Our review of Wisconsin case law that touches on the concerted action theory of liability concludes with Ogle. In Ogle, we held that both negligent participants in a "drag race" were equally liable for a fatal collision resulting from their negligence, even though only one of the tortfeasors struck a third automobile causing injury. Ogle, 33 Wis.2d at 135, 146 N.W.2d 422.

¶ 42 In Ogle, two cars were racing at a high rate of speed in the same direction down a highway, when the lead car collided with the plaintiff's car. Id. at 128-30, *593 146 N.W.2d 422. In holding both defendants equally liable for the collision without specifically referencing "concert