Bob Mionske on “Driver Sues Family of Deceased Cyclist”

In a Bicycling Magazine blog posting, Bicycling attorney Bob Mionske describes an appalling situation: a motorist driving over 80 mph in a 45 mph zone struck and killed a teenage bicyclist in Connecticut. The bicyclist’s family sued the driver — but then, the driver countersued the family, claiming that the bicyclist was negligent in not wearing a helmet.

Connecticut law excludes such claims. Mionske says that the Connecticut legislature, in its wisdom, excluded the claims because bicycle helmets cannot protect bicyclists in high-speed collisions with motor vehicles.

I seriously question Mionske’s explanation. The same exclusion exists in laws requiring seat belts and automotive child seats, which usually do protect their users in collisions. Also, bicycle helmets do protect bicyclists in many if not most car-bike collisions. Only a small percentage involve high-speed impacts. The bicyclist cut off by a crossing or turning vehicle, or sideswiped, may only be dumped onto the road or onto the hood of a car, and head injury may be survivable or even completely avoided if the bicyclist is wearing a helmet.

Any passive safety equipment — seatbelt, child seat, helmet — can sometimes prevent injury, but cannot prevent a crash. To allow the victim to sue the perpetrator, and to prevent the perpetrator from suing the victim, is a moral issue, not a technical one. This is even more important when a law is poorly understood and weakly enforced, as with bicycle helmet laws. Children often ride bicycles where parents can not monitor them. Distribution of helmets also is an issue, when a helmet can cost as much as a cheap bicycle. In states with contributory negligence statutes, it’s worse yet: a finding of 1% negligence on the part of the victim results in dismissal of a lawsuit against the perpetrator.

To my knowledge, I was first to raise the issue of the liability exclusion. Back in the 1980s, well-meaning safety advocates, most importantly Safe Kids USA, had begun promoting bicycle helmet laws. A law was enacted in Massachusetts, where I live, without a liability exclusion. As a member of the League of American Wheelmen State Legislative Committee, I campaigned for a better law, and it was enacted. The League’s Consumer Affairs Committee, on which I served, publicized the issue of the liability exclusion, and it was written into the laws of many states, including Connecticut.

The League remained neutral on the issue of helmet laws, as its members’ opinion on them was divided — also realizing that fighting helmet laws could look bad and might not succeed; but the League insisted that such laws include the same liability exclusion as other safety-equipment laws. To their credit, safety advocates responded positively, supporting laws with the liability exclusion and innovative penalty structures. Examples:

  • no penalty, but only a warning;
  • penalty waived if the violator purchased a helmet;
  • positive incentive, such as coupon for a free serving at an ice cream shop for a kid seen wearing a helmet.

The safety advocates also initiated helmet distribution campaigns for disadvantaged children. With time, the awareness became widespread that educational and promotional campaigns, more than laws, would be effective in increasing the rate of helmet use in the USA.

Helmets sometimes prevent injury and sometimes don’t — but that wasn’t the issue that propelled the campaign for liability exclusions. That a helmet would not have prevented injury could, quite to the contrary, point out the seriousness of a crash and make a persuasive argument that a bicyclist should recover damages!

2 Responses to Bob Mionske on “Driver Sues Family of Deceased Cyclist”

  1. Helmet laws and exclusions cannot be compared to seatbelt laws. Seatbelt laws relate to a host of factors, including the “crashworthiness” of a motor vehicle. Such issues are irrelevant to a bike crash. You can read about insurance defense lawyers ranting and raving over seat belt law exclusions here – http://www.dri.org/(S(jyz01o45hhegbn45qp1gkh45))/articles/ProductLiability/FTD-0912-ThomasSchuckReid.pdf – “DRI” stands for “Defense Research Institute” – all the insurance defense lawyers belong to this group which, as you might imagine, takes a very dim view of anyone who says they got hurt.

    Defense lawyers would love to use helmet laws as evidence of “contributory” or “comparative” negligence, but this makes no sense. There are two issues in a civil case – 1. Liability [Who is at fault for causing a crash?] and 2. Damages [As a result of the at fault's party's behavior, what injuries/damages ensued?].

    Wearing or not wearing Helmets doesn’t cause crashes or prevent crashes. Yet, in a state where strict “contributory negligence” is a complete defense, then a mere 1% of negligence by the cyclist causes the whole case to be lost. If helmet use was permitted to be a factor for discussion, cases would be tossed left and right in those jurisdictions…

    The only possible relevancy helmet usage is in the damages equation. Of course, if we all cycled in Kevlar suits, THAT would prevent or reduce injuries and damages – and if we all drove concrete cars and bikes were simply banned from the roadway, that would probably eliminate all bike fatalities and injuries.

    Legislatures tackling MHL’s have tried to balance the encouragement of helmet use, or mandating of helmet use, with the impact of such mandates in a civil case for damages and have intelligently taken helmet use out of the damages equation in most cases.

    Juries put WAY too much strength in their belief that HELMETS PREVENT DEATH AND BRAIN DAMAGE. This just isn’t true. Helmets can help in low impact situations and wouldn’t matter at all in big impact cases. Yet the big impact cases are the ones where the potential damages award can be huge, and the ones where defense lawyers would LOVE to use a “helmet” defense.

    How do you “prove” that a helmet would have prevented or lessened injuries in ANY case? Who has the burden of proof? At what cost?

    This is an area of proof with all sort of junk scientists touting their wares and explanations. It’s hugely expensive to present proper proof through PhD BioMechanical Engineers and the like and results in a sort of very expensive [think six figure] “mini trial” over helmet effectiveness which takes away from the fact that a cyclist got clobbered by a car and suffered severe injuries and a lifetime of damages. In smaller cases, the cost of proving that the helmet would have had little effect on damages could well outweigh the cost of proving the case and cause injured victims, with good claims, to give up their claims. Typically an injured victim cannot recover those costs at the end of the case. It’s just a cost, a HUGE cost, of doing business in the court system.

    Overall, I am strongly opposed to MHL’s, particularly for adults, and I am NOT a fan of MHL’s that do not prohibit the use of helmet usage at a civil trial.

  2. You opened Pandora’s Box otherwise known as bike helmets!

    My problem is that helmet efficacy is wildly overblown by large segments of the population that have spent close to zero time evaluating the literature. See the comments section of the recent Huffington Post article.

    http://tinyurl.com/2dsst5a

    There appears to be a growing body of evidence that serious brain damage is generally from angular instead of linear forces. A good literature review is available at the following link.

    http://tinyurl.com/2u8pdn

    Just wondering, do any helmet manufacturers claim that their helmets prevent or ameliorate concussions?

    So I agree that helmets can help for ordinary crashes. Helmets might create or exacerbate brain injuring during crashes too — my understanding is that there is little scientific evidence for or against this issue, but it is certainly a reasonable hypothesis. And the constant harping and overblown emphasis on helmets ignores the most effective tool for improving bicycle safety: that mushy mass inside the head.

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