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!