California's Proposed Bicycle Helmet Mandate Is A Bad Idea

Last week a state senator in California introduced a bill that would require all adults to wear a helmet while riding a bicycle.  While some jurisdictions in the United States require minors to wear bicycle helmets, if the proposed bill were to become law, California would be the first state in the country to mandate helmet use for adults.  

Mandatory bicycle helmet laws are a terrible idea.  Just in case an Illinois legislator gets an idea about introducing a similar bill here, let's revisit why.  Cycling as a form of recreation and transportation offers a myriad of benefits to the individual and the community as a whole.  An adult or child riding a bike to work or school takes one motor vehicle off the road thereby reducing traffic congestion and pollution.  It also reduces the strain on mass transit.  Buses and trains are less crowded and more pleasant to ride.  Also, motor vehicles place a physical strain on infrastructure that a much lighter bicycle does not.  Bicycle trips save the community money but taking heavy cars and trucks off the road.  In this age of rampant obesity, cycling helps promote good health.  This too saves the community money by reducing expenditure for health benefits such as Medicaid, particularly with regard to treatment for ailments closely associated with obesity like diabetes and heart disease.

These benefits are placed at substantial risk by helmet laws, because such mandates discourage higher rates of biking.  This very concern recently prompted the City of Dallas, Texas to repeal its adult bicycle helmet ordinance.  That city wanted to see more cyclists on its roads through a bike share system.  However, civic leaders recognized that such a program would likely be doomed to failure if casual bikers were required to fetch a helmet in order to rent a bike.  Australia is one country that requires all adults to wear helmets when cycling.  The impact has been unfortunate. According to the Institute for Public Affairs, an Australian think tank, "When the laws were introduced in the early 1990s, cycling trips declined by 30-40 per cent overall, and up to 80 per cent in some demographic groups, such as secondary school-aged females."

If the goal is to reduce the likelihood of serious injury for the individual bicyclist, then helmet mandates are the wrong way to go.  Yes, wearing a helmet while biking is safer than not doing so.  But the factor most likely to reduce the likelihood of bicycle versus motor vehicle collision is to increase the number of riders on the road.  More people on bikes means motorists are more likely to anticipate a bicyclist when turning or opening a car door.  More bicyclists also encourages municipalities to invest in bicycle specific infrastructure like protected bike lanes, and to keep them in good repair.  Understandably, city officials are less likely to push for such measures if they do not think people will use them in substantial numbers.

Laws that require helmet use can also have a devastating impact on a cyclist's ability to receive just compensation should they be injured due to someone else's negligence.  The way some laws are written, failure to obey a helmet requirement could be used against a bicyclist in personal injury litigation as evidence of their own negligence, even if failure to wear a helmet had nothing to do with how or why the crash happened.  (But see Deerfield, Illinois municipal code Sec. 22-121A(c) which states, "A violation of this Section shall not constitute negligence, contributory negligence, assumption of risk, be considered in mitigation of damages of whatever nature, be admissible in evidence, or be the subject of comment by counsel in any action for the recovery of damages arising out of the operation of any bicycle.")

We are not anti-bicycle helmet.  Daily we see the clients with injuries that are worse than they might have been for failure to wear one.  But legislation requiring helmets are a bad idea.

A Federal Court's Remark About Helmets May Pose A Hazard To Illinois Bicycle Crash Victims

Sometimes a wayward comment by a Court can wreak all manner of havoc.  Recently, I came across such a remark in a federal case from the Northern District of Illinois which I fear could have a negative impact on bicycle crash cases filed in Illinois state court.

The issue which the federal court stepped in pertains to whether a defendant in a personal injury case arising from a bicycle crash may present evidence to a jury that the cyclist was not wearing a helmet. The purpose of such evidence would be to suggest that, where the crash victim sustained a head injury, the failure to wear a helmet contributed to cause the injury and, therefore, is a factor which may reduce the amount of compensation to which the cyclist may receive.  The case, City of Chicago v. M/V Morgan, 248 F.Supp.2d 759 (N.D. Ill. 2003), actually had nothing to do with bicycles or injuries.  The case grew out of an incident in which a barge caused damage to a bridge held in trust by the City of Chicago and which the City was responsible to maintain.  In discussing whether the City was contributorily negligent in its maintenance of the bridge, the federal court noted by way of example that, "Even a thin-skulled bicycle-rider could be contributorily negligent for failure to wear a helmet." M/V Morgan, 248 F.Supp.2d at 776.

Huh?

No, actually, a bicycle-rider, thin-skulled or otherwise, cannot be contributorily negligent for not wearing a helmet in Illinois.  Federal district court decisions do not create authoritative precedent for state courts.  In other words, an Illinois state court, where the majority of personal injury cases arising from bicycle crashes are filed, is not bound by the holding of a federal district court.  However, a state court judge, may find a federal court's ruling persuasive and in the absence of clear state law authority, may choose to follow it.  Federal district courts are after-all supposed to base their holdings on substantive matters (as opposed to mere procedural matters) on the law of the state in which the court sits.  Being the cynic I am, I sense that it is just a matter of time before a defense lawyer in one of our many bicycle crash cases cites to the M/V Morgan decision to persuade a trial judge that a jury should be permitted to consider that an injured bicyclist was not wearing a helmet at the time of their crash.  The effect this could have on the cyclist's ability receive a fair trial could be catastrophic.  Sadly, in my experience, many folks feel that a cyclist who was riding without a helmet may deserve whatever they get.  Hence, evidence of a lack of helmet could preclude a bicyclist's ability to receive fair compensation.

Where on earth did the M/V Morgan court come up with its observation about bicycle helmets? For nearly 30 years, thanks to the cases of Hukill v. DiGregorio, 484 N.E.2d 795 (2nd Dist. 1985) and Clarkson v. Wright, 483 N.E.2d 268 (1985), it has been the law of our state that a failure to wear a helmet cannot be used to prove an injury victim's contributory negligence or to reduce the compensation to which they may be entitled.  A close look at the source of the federal court's comment reveals that it was not based on Illinois law at all.  The Court cites a federal district court case from New Jersey, Nunez v. Schneider Nat'l Carriers, 217 F.Supp.2d 562 (D.N.J. 2002).  The holding in that matter, in which the court was applying New Jersey law, found that evidence that a bicyclist contributed to their head injury for failing to wear a helmet was admissible.  In so doing, the court admitting that it was disagreeing with another federal district court in that state, Cordy v. Sherwin Williams Co., 975 F.Supp. 639 (1997), which issued the opposite holding just five years prior.  The Nunez court also acknowledged that its holding was contrary to that of other jurisdictions:  "The majority of courts addressing the issue have, for assorted reasons, rejected the admissibility of helmet evidence." Nunez, 217 F.Supp.2d at 567.  It explicitly acknowledged Illinois as being within that majority, citing Hukill v. DiGregorio. Id. at 568.  

The M/V Morgan Court's remark about helmet evidence is neither binding law, nor a persuasive source in support of the admissibility of such evidence.  It is likely, in fact, that the court never intended it to be either.  As noted earlier in this post, the case had nothing to do with a bicycle crash.  It was not a personal injury case.  The court had not been asked to consider bicycle helmet evidence at all.  Its comment about bike helmets was what is generally referred to in the legal world as dictum, an aside remark by a judge that is not intended to create binding authority.  But such comments, like a bullet fired into the air, can cause unintended harm.  Any attorney representing a bicyclist in a personal injury case should be familiar with M/V Morgan and be prepared to educate the trial judge that the commentary in that case concerning bicycle helmet evidence does not reflect Illinois law.

Hysteria Over Bicycle Helmets Could Subvert Justice

Somewhere along the way, well-intentioned people ended up doing harm to the people they wanted to protect.  I do not know exactly when it happened, but sometime between the 1970s, when no one wore helmets to ride their bikes, to now, when those who do not are viewed as reckless fools, good intentions went off the tracks.  The desire of health care professionals to see fewer children with head injuries by wearing helmets was and is a good thing.  But that desire has morphed into into something harmful.

Riding with a helmet is no longer merely a safety issue, it is a credibility issue as well.  Ride without one and risk being viewed as lacking good sense, as reckless.  When the news media reports on a bicycle crash there is often mention of whether the cyclist wore a helmet or not that often seems like a non sequitur. Sometimes it is sounds like a down right accusation.  Oh, she wasn't wearing a helmet.  They she deserved to get hit by that bus.  Just last month, The Chicago Sun Times published a snarky piece* critical of Chicago's new bike share program, Divvy, for not offering helmets to riders.  "Waiting To Happen:  Clueless riders.  No helmets.  Divvys everywhere.  What could go wrong?" screeched the sarcastic headline.  

The media's focus on helmet wearing is both is misinformed and threatens to undermine a cyclist's ability to receive justice in the event of a crash.

Wearing a helmet may reduce the risk of sustaining certain kinds of injuries, primarily skull fractures.  Also, certain types of higher risk forms of cycling -- road racing, dirt jumping -- should be done with a protected dome.  However, risks of head injury from slow bike riding and "transportation cycling" seem to be pretty darn low.  In the very same snarky Sun Times article which insisted that bike share was a tragedy just waiting to happen was an important statistic:  Of the 679,925 trips taken on Divvy bikes up to that point, only 7 accidents had been reported to Divvy.  Seven, or, .001% of the trips taken resulted in an accident being reported to Divvy.  A look at safety figures from other bike share systems around longer suggest that serious injuries to Divvy riders will remain low.  The current issue of Momentum Magazine offers some impressive statistics regarding bike share.

After 4.5 million trips, no user in London, UK, has been seriously injured or killed in a traffic crash.  Minneapolis, MN, can boast the same impressive record after 1 million trips; New York City, NY, after 3.1 million trips; Washington, DC, after 4 million trips; and Mexico City, Mexico, after 1.6 million trips.

These numbers suggest that the decision not to wear a helmet while riding a slow bike for transportation is a perfectly reasonable choice to make.

The reasonableness of that decision is important in the context of an injury claim.  In a personal injury case no single factor is more important toward a successful outcome than the credibility of the person bringing the claim or lawsuit.  The plaintiff's credibility is important every step of the way.  The police who arrive at the scene of a crash will immediately assess the victim's credibility.  Very often police reports note whether the bicyclist was wearing a helmet, even though helmet use is not required by law.  A driver's insurance company will consider the credibility of the injured cyclist and will be more likely to resolve the case early if it seems that, along with the driver's negligence, the cyclist was doing everything right.  Ultimately, a jury will be asked to consider the conduct of the defendant.  But the plaintiff's conduct -- the actions of the person bringing the lawsuit -- is always considered as well.  If the plaintiff makes a poor impression, either in the courtroom or with their past conduct, a jury will be disinclined to render a favorable verdict even in the face of evidence of the defendant's negligence.  There is no question, that at trial, at least in an urban setting, jurors will wonder whether the bicyclist had been wearing a helmet at the time of the crash.  They will wonder this even though Illinois laws forbids them to do so.  Two Illinois cases, Clarkson v. Wright and Moore v. Swoboda, created the general principal that in vehicular negligence cases evidence of the plaintiff's failure to use protective devices "is inadmissible for the purpose of establishing contributory negligence." Moore v. Swoboda, 571 N.E.2d 1056, 1071 (4th Dist. 1991).

All of this constant attention on bicycle helmets may poison potential jurors' attitudes toward cyclists who choose to ride without one.  The impact such attitudes may have on any particular case may be hard to gauge.  The attorney trying a bicycle case in front of jury must question potential jurors in voir dire about their attitudes regarding people who ride their bikes in the city.  Attitudes about helmet use should be questioned in order to determine whether your client will get a fair shake.

But long term, the hyperventilating about helmet use must stop.  

* I was interviewed for the article and said that under certain circumstances a company that rented bikes could be held liable for failing to provide a helmet.  I expressed that I thought it unlikely that liability could arise in the bike share context but that sentiment did not quite come out in the article.

Didn't Want It? Well, You Got It Anyway: A Bicycle Helmet That Folds

It seems to me that bicycle helmets are about as cool as they're ever going to be.  But what they are not is foldable. . .  That is until now. Behold:

Click here for more information and photos.

Dane Does Not Think Bicyclists Should Wear Helmets

Here's a video from Mikael-Colville Andersen on why we should not wear helmets to bike.  I am a firm believer that you should wear a helmet to ride.  While there is certainly a sizable minority that disagrees with me, most folks, including potential jurors, feel that the prudent course is to wear one.  Certainly, no one will hold it against you if you do.

The bottom line is this:  Riding in the city is dangerous, period.  So wear a helmet.  However, it is not so dangerous that you should avoid riding all together.  The middle path people; take the middle path.

The video is via Momentum Magazine, via Urban Velo.

Judge Questions Advantages of Bicycle Helmet Law

Recently, a judge in Australia overturned a citation issued to a woman ticketed for riding her bike without a helmet and acknowledged the on-going controversy regarding the effectiveness of bicycle helmets in reducing injury.  The bicyclist had been cited for violating a law requiring helmet use for adults.  She fought back arguing that she should have a choice as to whether to wear a helmet or not.  She argued that, "if she fell from her bike while wearing a helmet she would be at greater risk of brain damage from 'diffuse external injury'."  What that means is that when your helmeted head hits the ground at speed the helmet grips the road "twisting the head more quickly than if the skull were unprotected."  In such a way, she argued, helmet use may increased the likelihood of sustaining injury in a crash.  The appellate judge was persuaded stating, "I frankly don't think there is anything advantageous and there may well be a disadvantage in situations to have a helmet -- and it seems to me that it's one of those areas where it ought to be a matter of choice."  Click here to read the full story.

Before you get ready to chuck your helmet consider the full picture.  There is plenty of research that has found that helmet use does save lives, particularly when utilized by children.  A recent study of helmet use among children found that, “helmet laws significantly reduced bicycling fatalities among youths age 0-15 (i.e., youths who were directly treated by most states’ age-16 helmet laws) by about 19 percent.”


In Illinois helmet use among adults is not mandatory.  Also, in the context of a personal injury claim arising from a bike crash, lack of helmet use cannot be introduced as evidence that the bicyclist failed to take proper precautions to look out for his or her safety.

Funny Video Promotes Bicycle Helmet Use

Here is a great, and funny, video from the Brain Injury Association for anyone who has ever felt a little self conscious about wearing a bicycle helmet:



Thanks to the folks at Go Means Go! for making me aware of this video.

The Girl With The Invisible Bike Helmet

Love your head, but hate wearing a helmet?  Well, those brilliant Swedes may have the answer for you:  a cyclist's airbag.  Exemplifying a rising pax sverige, the birth place of Stieg Larsson has come up with a device called the Hövding ("chieftain" in Swedish), a device which the bicyclist wears around the neck and which rapidly inflates during a crash.  The Washington Post reports that, "It will go on sale in Sweden early next year, retailing for about $50."  Check out this video of some testing done on this . . . "helmet":

New Bicycle Helmet Smart/Stinky

Bicycle helmets do not last forever. Today's high tech helmets are meant to break in a crash. The idea is, better the foam plastic helmet than the rider's coconut. If you are involved in a crash while wearing a helmet you should replace the helmet immediately. Do not reuse it, even if it shows no obvious exterior signs of damage. The foam underneath the plastic shell may be damaged enough to reduce it's effectiveness in a subsequent crash.

How hard does a helmet have to hit something to render it useless? German scientists have come up with an innovative way of helping cyclists make that determination. They've created a helmet that smells like stinky cheese when it is cracked to alert you -- and everyone around you -- that it is time for a new one. Smart; but we all knew Germans make good stuff. Check out this innovative Limburger lid by clicking here.

Click here to learn more about when to replace your bike helmet.

Lack of a Helmet Cannot Be Used Against an Illinois Bicyclist at Trial

It seems that the first reaction anyone has upon hearing that a bicyclist was injured in a traffic accident was, well, was s/he wearing a helmet? A legitimate inquiry on its face, but it always sounds. . . accusatory; as if there is an clear correlation between helmetlessness and reckless bike riding. S/he wasn't wearing a helmet, then s/he got what s/he deserved. Silly. This post is not about whether bicyclists should wear helmets. (They should.) It is not about whether Illinois law requires bicyclists to do so. (It doesn't, yet.) Rather, it considers whether the lack of a bicycle helmet may be used against an accident victim at trial to either reduce or bar recovery.

In an Illinois personal injury case, a jury may compare the defendant's alleged negligence to any negligence committed by the injury victim and determine if the plaintiff's own conduct contributed to cause his or her own injuries. This is called "contributory negligence." At trial the judge will instruct the jury,

When I use the expression "contributory negligence," I mean negligence on the part of the plaintiff that proximately contributed to cause the [alleged] [injury] [death] [property damage].

I.P.I. 11.01

If a jury finds that the injury victim was more than 50% at fault for causing his or her own injuries then the plaintiff will be completely barred from recovering money damages, just like if the defendant is found not liable. However, if the jury finds that the plaintiff's conduct was 50% or less the cause of his or her own injuries then the jury's damage award will be reduced by that amount. 735 ILCS 5/2-1116(c)

Within the context of this law, the defense in a bicycle accident case may wish to present evidence to the jury that the injured bicyclist contributed to his or her injuries by not wearing a helmet. Illinois law, however, prohibits the defense from presenting evidence that the plaintiff was not wearing a helmet at the time of the alleged incident. Attorneys representing an injured bicyclist should file a motion in limine barring the defense from presenting evidence that the plaintiff was not wearing helmet. In 1985, two cases were decided that relate to this issue. In Clarkson v. Wright, 483 N.E.2d 268 (Ill. 1985) the supreme court held that evidence that a plaintiff in a motor vehicle accident case was not wearing seat belt at the time of the alleged occurrence is not admissible. The Court stated:

We agree with the majority view that failure to use a seat belt was not negligence or contributory negligence which caused the accident out of which plaintiff's injuries arose. At most, the failure to use a seat belt created a condition which possibly may have increased the severity of plaintiff's injuries. . . We conclude that . . . evidence of failure to wear a seat belt should not be admitted with respect to either the question of liability or damages.

Clarkson, 483 N.E.2d at 269-70. (This rule was later codified in Section 12-603.1 of the Illinois Vehicle Code.)

This rule of law was expanded to include motorcycle helmets in Hukill v. DiGregorio, 484 N.E.2d 795 (2nd Dist. 1985). In that matter, the appellate court, citing the Clarkson decision which came down just a few months earlier, held that the "helmet defense" should be barred from mitigating the plaintiff's damages. These two decisions created the general principal that in vehicular negligence cases evidence of the plaintiff's failure to use protective devices "is inadmissible for the purpose of establishing contributory negligence." Moore v. Swoboda, 571 N.E.2d 1056, 1071 (4th Dist. 1991).

The Clarkson, Hukill and Swoboda cases -- along with the fact that Illinois law does not mandate helmet use -- establish that a bicyclist's failure to wear a helmet may not be used as either a damages reducer or to bar recovery altogether. Remember, though, as I noted at the beginning of this post, jurors may be wondering whether a helmet was worn. They may be off put by silence on the matter during trial and hold it against the plaintiff, who owns the burden of proof at trial. If the injured bicyclist was wearing a helmet then the trial lawyer should note that fact.

More Evidence That Bicycling Without A Helmet Is Foolish

If you are still unpersuaded to wear a helmet while bicycling read this.

Cheap Bicycle Helmets May Offer Adequate Impact Protection, But. . .

The Bicycle Helmet Safety Institute recently conducted a study designed to determine whether cheap bicycle helmets, of the kind you might find in a department store, offer less protection than more expensive models. The study found no difference with regard to impact protection. But let's be a little careful here. Fit is important, and the study did not take that factor into account. Bicycle helmets have changed enormously over the years. A few months ago I replaced a helmet I've had since the mid-'90s with a new model. The latest helmets stay in the proper position on the rider's head much better. That means that it is likely to be where it is supposed to be when you bash your coconut against something hard like a windshield. Sometimes you have to pay more for a helmet that fits better. Also, let's not kid ourselves; many of us are vain. I am. If you (or your child) are more likely to wear a helmet because it looks like the latest and greatest, well then there are worse things on which you could spend your money.

Kids and Bicycle Helmets

In the summer of 1985 I was riding my new Peugeot racing bike along a twisting, hilly road on my way home from my part time job when suddenly the lights went out. I woke up in a hospital with a severe concussion and not sure of who I was. My face was scratched, bloody and bruised. I was 16 at the time. I was very lucky. I had not worn a bicycle helmet.

Illinois law does not require children to where bicycle helmets. Many other states do. A new study, reported on in the New York Times, found that states like Illinois should require helmets. According to the study, "Children who live in states with laws requiring bicycle helmet use are much more likely to wear them than those who do not." When kids wear bike helmets the chance of injury is very significantly reduced. According to Children's Hospital of Illinois, "Wearing a proper fitting helmet can reduce the chances of serious head injuries by 85%." It's hard to argue with statistics like that.

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