The following is a guest blog post by Michelle Weiss, an attorney with Bay Area Bicycle Law, the only firm in Northern California that exclusively represents cyclists.
A bill introduced earlier this year mandating helmet use for California adults (SB-192) was scaled back following opposition from bike organizations statewide. So for the time being at least, helmet use remains optional for adult cyclists in California. This means the issue of whether plaintiffs are contributorily negligent for not wearing a bicycle helmet remains a legal gray area.
The bike helmet issue is somewhat comparable to when a plaintiff fails to wear a seatbelt or rides a motorcycle without a helmet; in these instances, the defense can argue comparative fault. This is a very big deal, because comparative fault is a finding that reduces an entire judgment based on the percentage of fault attributed to the plaintiff. But bicycle helmet use has some fundamental differences from seat belts and motorcycle helmets.
Here are four arguments plaintiff’s counsel can use to combat allegations of comparative fault due to helmet nonuse:
- Legislative intent. Unlike seatbelts and motorcycle helmets, cyclists aren’t legally required to wear a helmet. This suggests that nonuse is considered acceptable. Further, the legislature has considered mandating helmet use for all cyclists, but has so far only required it for minors, thus implicitly considering and rejecting a helmet requirement for adults. This shows legislative intent that unhelmeted adult cyclists should be treated differently than unbelted drivers or unhelmeted motorcyclists. You can argue that it would be inappropriate for a judge or jury to decide that an adult cyclist had a duty to wear a helmet when the legislature has already considered and rejected that notion.
- The circumstances. The first element of comparative fault requires that the plaintiff’s conduct violated the applicable standard of care. The fact-finder has no obligation to find that reasonable care requires the wearing of a helmet. Consider the individual facts of your case: If your client was just riding his or her bike two blocks to the grocery store, argue that the circumstances didn’t call for helmet use. Note that the further your client was traveling and the more hazardous the roadway, the weaker this argument becomes.
- Causation (or lack thereof). The second element of comparative fault is causation—that wearing a helmet would have made a difference. This requires expert testimony. The extent to which helmets prevent head injuries is unclear; many cyclists suffer serious head injuries even while wearing a helmet. Without expert testimony, jurors can only speculate what would have or could have happened had the plaintiff worn a helmet. If the defense hasn’t retained an expert qualified to opine on what difference a helmet would have made, move to exclude any arguments on helmet usage.
- Inequitable results. A finding of comparative fault can be highly inequitable if the plaintiff has other, non-head injuries. There’s no logical reason why compensation for non-head injuries should be reduced for failure to wear a helmet. If you’re unfortunate to have a judge who allows the defense to argue comparative fault based on helmet nonuse when the cyclist also has other injuries, request a special verdict form that separates the comparative fault to be applied to the damages resulting from the head/brain injury from the rest of the cyclist’s damages.
Don’t forget that the burden of proving comparative fault (along with causation) is on the defense, and emphasize that in your closing; by arming your jurors with this legal standard, they’ll be prepared to stand up to opposing jurors.
For more on general principles of negligence and defenses (including comparative fault), turn to CEB’s California Tort Guide. Also check out the effect of comparative fault on damages in CEB’s California Tort Damages.
Other CEBblog™ posts you may find interesting:
- Before Taking on the Government for that Pothole
- Get Technical in Your Next Personal Injury Case
- A Picture Is Worth…a Winning Case?
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