States throughout the country seem to be submitting to the pressure of lobbyists to repeal the motorcycle helmet laws. Florida is an excellent state to examine because all motorcyclists were required to wear a helmet until 10 years ago. How exciting it was to see the freedom of men and women riding their motorcycles, invoking images of Easy Rider, with the recent repeal of the mandatory helmet law.

However, the excitement over this new-found freedom has resulted in increased litigation over whether there is a “helmet defense” in Florida and in the other 27 states that allow operators, with certain age requirements, to make their own decision concerning whether to ride with a helmet.

The issue we address in this article concerns how to handle the helmet-free driver and passenger at trial. Is this evidence admissible with regard to liability or damages? Should there be a separate line on the verdict form that allows the jury to assess comparative negligence for the failure to wear a helmet, or , in the alternative, to reduce the damages almost arbitrarily based upon how much the jury suspects the lack of a helmet affected the injuries?

Most statutes that either repeal helmet laws or simply do not require a helmet in certain circumstances fail to address the consequences of this decision.

Studies have shown that a helmet can affect the rider’s ability to see peripherally and to hear. Other studies have shown that the extra weight of the helmet can cause catastrophic injury. Additional studies indicate that the brain can actually swell inside the helmet with trauma.

Frequently, the law requires the use of a seatbelt, but not the use of a helmet. The attorney representing the helmet-free plaintiff should rely on several well-founded principles of law to insure a fair trial. The first has to do with what has been known as the “egg-shell theory.” The defendant must always take the plaintiff as he finds him. How is not wearing a helmet when the law doesn’t require one different from severe arthritis, multiple herniated discs, prior injury, diabetes, or any of the other pre-existing condition that the defendant must be held accountable for? Why should the plaintiff be expected to actually take into consideration, every time he gets on a motorcycle, a driver’s failure to see them on the open road? Should someone with severe arthritis not drive a car because they may be struck from behind?

Another practical argument that must be presented to the judiciary is the fact that helmets are not attached to the motorcycle and provided as safety equipment upon purchase. Unlike a seatbelt, which is in every car and must be tested by a manufacturer to make sure it works properly, a motorcyclist may choose to borrow a motorcycle, rent one, or otherwise need to get somewhere when a helmet is simply not available.

In any state where there is a seatbelt defense available to a jury to consider, the court must realize that there is a significant difference between an item that is made by the manufacturer as standard equipment and closely regulated, as compared to an item which is not required by any motorcycle manufacturer or government standard to be even sold, much less attached to the motorcycle.

Our country is founded upon freedom. An individual must be free to choose in a situation where the legislature has allowed this freedom.

Another distinguishing factor between seatbelts and helmets is the different designs that are available concerning helmets. We have handled many cases where the injuries were to the face, chin, and forehead of the helmet-free motorcyclist. We have all seen motorcyclists riding by with a tiny little cap of a helmet that in no way would protect against these types of injuries. Even in states that require a helmet, this type of a helmet is usually allowed. If the judge is leaning toward allowing the defense to bring into evidence the failure to wear a helmet and especially to place that defense on the verdict form, the plaintiff’s attorney must be able to demonstrate to the judge and be prepared to present it to the jury, in the event the judge allows this evidence, the fact that the helmet that is required would not have protected against these injuries. Few states requires a full helmet that protects the chin, face, and entire head. Unless the defense can show that the smallest legal helmet required in a particular state would have prevented these injuries, evidence of the failure to wear a helmet should be inadmissible and definitely not on the verdict form as an issue of comparative negligence or in any way used to reduce the plaintiff’s damages.

The best time to address this issue is before trial during a Motion in Limine. If the judge is unclear on his ruling, or allows admission of the lack of helmet for any purpose, this must be covered in Voir Dire in great detail. The jurors experiences in seeing motorcycle riders flying by without a helmet at a high rate of speed must be explored. It may be difficult to get those jurors excused for cause just because of feelings concerning the lack of helmet, since the judge is going to rule that it is admissible, but certainly this can be moved into another area of general prejudice against plaintiffs and motorcycle riders. Our experience is that at least 50% of the jurors will have a prejudice against motorcycle riders, the way they drive at high rates of speed, don’t wear helmets, and generally don’t obey traffic laws. When this is brought out and it is demonstrated that these feelings have existed for many years, the judge will have to admit that this prejudice will continue throughout the trial and your case. Be prepared before the trial begins with a Memorandum of Law on Challenges for Cause on this issue, specific to motorcyclists, so it can be presented to assure that not one juror is left when the trial begins that has those feelings and beliefs. If the judge restricts your time to question the jury, be sure to cover this issue involving motorcyclists in the very beginning, because it may take many hours to seat a jury where everyone remaining has thoroughly been polluted by the destructive feelings of the other jurors who have been excused for cause, but can state with absolute certainty that they do not agree with the prejudice against motorcycles and the failure to wear a helmet that they have been subjected to over the past few hours. Presenting a memorandum on this issue in advance of trial to let the judge know that you will appeal if even a single juror is left who is not willing to say that he has absolutely no prejudice against motorcyclists and understands the right to ride a motorcycle and the right to not wear a helmet in those states that do not require its use.

Published to attorneys by Richard B. Troutman on 2/28/09.