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.

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.

Illinois Senate Bill Would Mandate Bicycle Helmets for Children

On January 21, 2010 a bill was introduced in the Illinois Senate that would require all children under the age of 16 to wear helmets while bicycling. Senate Bill 2627, were it to become law, would also require bicycle passengers weighing less than 40 pounds to travel in a bicycle safety seat. The law would make it unlawful for the parent or legal guardian "of a person below the age of 12 to permit the person to operate or be a passenger on a bicycle in violation" of either of these requirements. A person in violation of the law would be subject to a penalty "not exceeding $2".

The bill was introduced by Senator Ira I. Silverstein (D) of Springfield, Illinois who has four children of his own.

I'm all for this. A lot of parents today already require their children to wear helmets when bicycling. More than anything, this law would help compel everyone else to get on board with what seems to me to be a no-brainer. Let me anticipate commentary to this post by noting that simply strapping a helmet on your child is not enough. Children should be taught proper cycling technique and how to anticipate and avoid dangerous situations.

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