Oak Park Wrong To Mandate That Children Wear Bike Helmets

Sofia Kevenides learning to ride.

Oak Park has chosen the stick rather than the carrot when it comes to encouraging safe cycling for children. A new village ordinance will punish the parents of children under 17 where they are caught riding without a helmet.  This is the wrong approach.

Few sensible people would dispute the benefits of encouraging children to ride their bikes.  Bikes promote independence and good health for kids (and adults).  They also happen to be really fun. Injuries sometimes occur, so kids should be taught safe riding practices and should be encouraged to wear a helmet. 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 is hard to argue with statistics like that.

However, as a parent the first trick is to get a child riding in the first place.  My six year old daughter rides a two wheeler now.  She loves it.  She wears a helmet.  But, such was not always the case.  At first, when she was about four, she did not love getting on her bike.  My wife and I had to nudge her a bit.  Once we got her pedaling, we took up the helmet battle.  Often she just would not wear one.  Against my better judgement at the time, I let her ride in the driveway and in front of our Logan Square home with her curls flying free in the breeze, helmetless.  I was just glad that she was riding and liking it.  Sometimes she fell and suffered minor scraps, mostly on her knees and hands.  She never hit her head.  She rode so slowly that it never seemed like she was at risk of a significant head injury even if she crashed.  Eventually, she came to enjoy riding and got good at it.  The helmet came next and it was no big deal.  She always saw her dad wearing one so it seemed like the natural thing to do.  At this point I am glad it did not sweat the helmet thing too much.  I just did not want to fight with her about it.  I wanted her to see all things bicycle in a positive way. Fighting over wearing a helmet did not seem worth it.  I feared it would turn her off riding and would discourage her from getting on her bike.  Once she started enjoying her bike, we more forcefully encouraged her to wear a helmet.

Parents learn quickly to pick their battles with their children as the grow from babies to toddlers to full on knee-skinning, dirt pile jumping kids.  Yeah, children should be encouraged to bike with a helmet, but first they should be encouraged to just ride.  Parents need some leeway with regard to how to accomplish that. The new Oak Park ordinance is fairly harsh.  "Parents of children under 17 will be required to pay a $25 fine or perform up to four hours of community service if their child is caught three times riding a bicycle without a helmet," according to The Chicago Tribune.  Many parents will feel it necessary to force their children to wear a helmet in the face of this potential punishment.  Some may even receive the misleading message that if the law requires helmet use perhaps biking is just too dangerous an activity for their kids.  In my opinion, helmet use for kids and adults alike should be encouraged, not mandated.

When Liability Can And Cannot Arise From A Child Learning To Ride

Parents of young children just learning to ride a bicycle worry about injuries. A small child on a bicycle or tricycle can be especially difficult for a motorist to notice. Also, young kids tend to be fearless to a fault. On the other hand, parents tend not to focus so much the harm a young child on a bicycle could cause to others, and the liability that may arise from a child's early efforts at staying upright on a bike. This wasn't a topic on my mind until I came across a 2001 case from the Illinois Appellate Court's second district, Appelhans v. McFall, 325 Ill.App.3d 232 (2nd Dist. 2001). In that case, a 66 year old woman was walking along the edge of a roadway when a five year old boy rode up on his bicycle and struck her from behind, causing her to fall and fracture her hip. In her subsequent lawsuit, the woman alleged that (1) the boy was negligent in the manner in which he rode his bicycle; (2) his parents failed to instruct him on how to properly ride his bike; and (3) his parents failed to "supervise him while he rode his bicycle on a public roadway because they knew or should have know that his youth would prevent him from considering the safety of pedestrians." Appelhans, 325 Ill.App.3d at 234.

The trial court dismissed all three of the woman's allegations and the Illinois Appellate Court affirmed that decision. With regard to the allegation that the boy himself was negligent, the court reaffirmed the well-established "tender years doctrine." The court stated, "The rationale for the tender years doctrine is the belief that a child under the age of seven is incapable of recognizing and appreciating risk and is therefore deemed incapable of negligence as a matter of law. The child's immaturity limits his liability regardless of whether, as a litigant, he is the plaintiff or the defendant." Id. at 236. The court noted that had the child been between the ages of seven and 14 a jury would have been asked to consider the child's conduct considering his "age, capacity, intelligence, and experience." Id. at 238. Between seven and 14, the presumption that a minor is incapable of negligence is rebuttable. Once a person is over the age of 14, in Illinois he or she will be held to the same standard as an adult. However, under the facts it was asked to consider, the Appelhans court held that the five year old defendant could not be found guilty of negligence.

With regard to the allegations against the boy's parents for negligent supervision, the court noted that the parents had no reason to believe that their son might cause someone harm. The court stated:

In Illinois, the parent-child relationship does not automatically render parents liable for the torts of their minor children. Parents may be liable, however, if they do not adequately control or supervise their child. To prove a claim of negligent supervision, a plaintiff must show that (1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur and (2) the parents had the opportunity to control the child.

Id. at 238-40.

In Appelhans, the plaintiff did not allege that the parents were aware of their son striking anyone with his bike on a previous occasion. Therefore, they could not be held liable for the woman's injury. The court stated that, "We conclude that holding parents strictly liable for failing to prevent their child's negligence is unreasonable and unsupported by the law." Id. at 240.

Notwithstanding the facts alleged in Appelhans, I am inclined to believe that five-year-olds rarely cause harm to others while learning to ride their bikes. Certainly, they pose a much greater risk to themselves then to others. Unless they know that their child is prone to exceptionally devilish conduct, parents need not be too concerned about liability arising out of their young children learning to pedal around the neighborhood.

A Pile Of Dirt, A Bicycle and A Duty of Care

For a kid there are few things more fun and exciting than a bicycle and a pile of dirt. It's messy, it's exciting and it's simple. The problem, however, is that it often presents a young child with some serious danger. Speaking from the experience of my much younger self, a pile of dirt offers a kid the chance to fly, the mound providing a ready-built ramp for aerial tricks and stunts. Unfortunately, the fun sometimes ends with broken bones, serious cuts and gashes, sprains and even head injuries. I remember an incident from my own childhood in which a friend and I created a ramp from a pile of dirt at the bottom of a steep street. I went barreling down the road, onto and over the dirt pile. I remember being terror-struck as I flew through the air and eyed a bunch of cinder blocks haphazardly strewn in my poorly anticipated landing zone. The impact against the hard blocks broke my leg.

What duty does the private landowner owe to children engaged in this sort of bicycling on his or her property? The answer boils down to foreseeability. In Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 886 N.E. 543 (5th Dist. 2008) an 8 year old boy was seriously injured while using a pile of dirt as a bike ramp in the parking lot of a privately owned playground that was open to the public. In response to the lawsuit filed by the boy's parents, the defendant landowner asserted that the case should be dismissed because the pile of dirt was an open and obvious danger that even an 8 year old could appreciate. If the child chose to risk launching himself through the air via the dirt mound, the landowner felt it should not be held responsible where injury resulted. The problem for the landowner, however, was that it knew ahead of the boy's accident that children were legally on its property, engaged in dirt jumping and that they were likely to get hurt while doing so. The appellate court noted that while the dirt was perhaps open and obvious, an 8 year old boy may not fully appreciate the danger of using it as a bicycle ramp. In any event, the Court stated that the ability of the boy to have recognized the danger was not the only issue in determining whether the landowner had a duty to correct or warn against the hazard. The Court stated, "In order to find that a landholder owes a duty to a child injured on its premises, a court must also find that (1) a dangerous condition exists on the property, (2) it is reasonably foreseeable that children would be present on the premises, and (3) the risk of harm to children outweighs the burden of removing the danger." Grant, 381 Ill.App.3d at 670. The Court found it damning to the landowner that the park's commissioner testified that he had seen children jumping their bikes on the dirt, had shooed them away because he recognized they could get hurt and observed them return to the mound with their bicycles despite his admonition. In light of that knowledge, the Court held that the danger to the boy was foreseeable and that the landowner, therefore, owed him a duty to remove the hazard, especially given the nominal cost involved in dismantling the pile by just spreading the dirt around.

In Grant, the boy was legally permitted to be on the property at the time he was injured. But what if he had been a trespasser? Again, knowledge is key. Given the facts presented in that case, the landowner still could have been held liable. The general rule in Illinois is that a landowner owes no duty of care to trespassers except to avoid purposefully injuring them. However, our courts have carved out a "frequent trespass exception" to this rule. "Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of its activities, where the landowner knows, or should know from the facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size." McKinnon v. Northeast Illinois Regional Commuter Railroad Corporation, 263 Ill.App.3d 774, 777, 635 N.E.2d 744 (1st Dist. 1994). A failure to object to trespassers coming on the land may be viewed as "tacit permission" for them to do so. The landowner may be liable to such "tolerated intruders" for injury "where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it." Id. at 778. The facts presented in Grant were that the landowner knew the boys continuously came onto its property specifically to jump their bikes on the pile of dirt. The park commissioner had seen them do so on more than one occasion. The commissioner had asked the boys to leave on one occasion, but on others he failed to do so. He testified that he saw the boys return to the pile with their bikes even after he asked them to leave. After the boy suffered his injury the dirt pile was spread out with little cost or effort. Pursuant to the "frequent trespass" exception, the landowner in Grant could have been held liable under these facts even if the injured boy had been a trespasser. The owner know the boys continuously entered a specific portion of its property to play on the dirt mound. Also, the cost of preventing the harm, i.e. by flattening the pile, was slight.

Children on their bicycles tend to be endlessly creative, and that's a good thing. Kids will always gravitate toward danger. As parents, we of course hope they will survive their natural inclinations for fun and adventure seeking. Landowners must recognize that they simply cannot turn a blind eye to children playing on their property. There is no need to be the angry neighbor who constantly yells at children to stay away. At the same time, if there is a dangerous condition on your property that you know children encounter you must take reasonable steps to correct the hazard.