by Don A. Dennis
Every March, thousands of motorcycle enthusiasts descend upon Daytona Beach, Florida, and the otherwise quiet Florida beachside community becomes the center of the motorcycle world. This March, for many of them it was the first time in years that they could legally forego their helmets and feel the wind in their hair, thanks to a recently enacted statute. Florida Laws Ch. 2000-313 amended F.S. §316.211(2001) to allow riders over the age of 21 who have acquired insurance to choose whether they wish to wear a helmet.1 Though the amendment has been hotly debated for many years, its passage does not end the debate in Florida; rather, it shifts the forum from the legislature to the judiciary. The issue is no longer whether riders should have the choice to wear a helmet, but who should bear the consequences when a person chooses to exercise the right to forego a helmet and is involved in an accident in which the use of a helmet could have prevented injuries.
This article seeks to point out the various issues and policy concerns that will confront both practitioners and the judiciary as a result of this statutory amendment. With the passage of the bill, Florida aligned itself with 27 other states that allow operators above a certain age to decide whether to ride with or without a helmet.2 Twenty states have mandatory helmet laws for all operators, and three states (Colorado, Illinois, and Iowa) have no laws relating to helmet usage.3 National Highway Transportation and Safety Administration (NHTSA) studies show that when states have mandatory helmet laws, compliance is nearly 100 percent.4 However, without mandatory helmet laws, helmet usage drops to roughly 50 percent.5
According to an NHTSA study, Florida had the second highest number of total fatalities in the country behind California in 1999.6 Based on Florida Department of Highway Safety numbers, there were over 4,000 accidents involving motorcycle operators and/or passengers.7 With the passage of this new legislation, the amount of damages and the severity of injuries will undoubtedly increase. As injuries increase, so does litigation.
In a case involving a motorcycle accident, one of the first issues to be determined is the effect of the plaintiff’s nonuse of a helmet, whether one is counsel for the plaintiff or defendant. Is such evidence admissible with regard to liability? Does it go to mitigation of damages? The language of the statute is silent as to the consequence of nonuse. No appellate case has addressed this issue directly since the passage of the amendment, and little-to-no case law existed relating to the use or nonuse of protective headgear even prior to the new amendment. The only reported case that specifically addressed this issue is Rex Utilities, Inc. v. Gaddy, 413 So. 2d 1232 (Fla. 3d DCA 1982). In Gaddy, the central issue was whether a defendant could introduce evidence and argue to the jury as a comparative negligence defense that the plaintiff was not wearing protective headgear in violation of F.S. §316.211(1) (1977) at the time the accident occurred.
The plaintiff in Gaddy died from a severe head injury when she was thrown from a motorcycle on which she was a passenger when the motorcycle ran over a hidden trench alongside the road.8 Suit was brought by the estate and parents of Karen Gaddy against the defendant Rex Utilities, Inc., for negligently perpetrating this hazardous condition.9 At trial, the defendants sought to introduce evidence that the plaintiff was not wearing protective headgear in violation of the statute when the accident occurred and this constituted comparative negligence.10 The defendant’s evidence merely consisted of proffered testimony by a neurosurgeon who stated he had no way of knowing whether the damages would have been lessened had the plaintiff worn a helmet.11 The appellate court held that because no evidence was presented that the violation was a proximate cause of the head injury sustained by the plaintiff, the defense was not entitled to present such testimony to the jury or make a comparative negligence defense.12
The Gaddy case, however, has little precedential effect today for two reasons. First, the appellate court’s opinion made no ruling on whether such evidence or defense would have been presentable to a jury had the defense set forth sufficient evidence showing that use of a helmet would have lessened the damages. Second, the legal landscape since the time the Gaddy case was rendered has changed dramatically with the adoption of the seat belt defense. A review of how other states have addressed this issue shows that the answer is closely related to how each state has addressed the seat belt defense.
Although very few states have addressed this issue directly, an examination of two key cases reveals a common approach for addressing the issue despite their different conclusions. Warfel v. Cheney, 758 P.2d 1326 (Ariz. Ct. App. 1988), is one of the first cases in which a court allowed a defendant to introduce evidence of the plaintiff’s nonuse of a helmet to mitigate damages. At the time of the decision there was no mandatory helmet requirement in Arizona.13 Unlike the Gaddy case, testimony was elicited that more likely than not, had the plaintiff been wearing a helmet his injuries would not have been as severe.14 The Arizona appellate court was then asked to decide whether such evidence was admissible to reduce the damages a plaintiff can recover.
In reaching its decision, the Warfel court’s first determination was whether the principles asserted in its determination to adopt the seat belt defense applied equally to helmet usage. The court found that the use of a helmet generally saves lives and reduces severity of injuries in a similar manner as do seat belts, and the principles enunciated by the Arizona Supreme Court in adopting the seat belt defense15 were equally applicable to the determination of the helmet defense.16 The Warfel court ultimately held that “a helmetless rider who is injured and brings an action to recover in tort must bear the consequence of the free choice not to wear a helmet by reduction of damages in the amount the jury determines the helmet would have reduced the injuries.”17
The Hawaii Supreme Court adopted a similar approach in Kealoha v. County of Hawaii, 844 P.2d 670 (Haw. 1993), yet reached a different conclusion. In Kealoha the trial court refused to admit evidence that the plaintiff was not wearing a helmet.18 Hawaii had no statute requiring the use of a helmet.19 The Hawaii Supreme Court specifically addressed the Warfel decision, but distinguished it, stating that in Hawaii there is no seat belt defense which formed the basis for the Warfel court’s ultimate conclusion.20 The Kealoha court even went as far as to state that Hawaiian courts had not “taken the intermediate step [adoption of a seat belt defense] that was necessary to the Arizona court’s holding in Warfel.”21 This approach has been followed by virtually every court to address this issue when the courts have either adopted or rejected the helmet defense consistent with how that jurisdiction has addressed the seat belt defense.22
In 1984, the Florida Supreme Court recognized the seat belt defense in the landmark case of Insurance Co. of North America v. Pasakarnis, 451 So. 2d 447 (Fla. 1984). In Pasakarnis, the plaintiff was injured when his vehicle was hit by another vehicle.23 There was no claim that the plaintiff caused the accident; however, the defendants alleged that had Pasakarnis been using his seat belt, his bodily injuries would have been substantially reduced or prevented.24 The trial court and district court refused to allow the seat belt defense, but the Florida Supreme Court held that a defendant could raise the seat belt defense and quashed the lower courts’ rulings.25
Citing a study from the U.S. Department of Transportation as well as case authority from numerous jurisdictions, the court found that “[t]he seat belt has been proven to afford the occupant of an automobile a means whereby he or she may minimize his or her personal damages prior to the occurrence of the accident.”26 The court sided with other jurisdictions that held that by not fastening his or her seat belt, a plaintiff may, under the circumstances of a particular case, be found to have acted unreasonably and in disregard of his or her best interests and, therefore, should not be able to recover those damages which would not have occurred if his or her seat belt had been fastened.27 At the time the case was rendered, no statute required motorists to wear seat belts.28 The adoption of the seat belt defense was not based on any statutory duty, but rather on independent principles of apportioning fault based on the reasonableness of each party’s conduct. Thus, the fact that there is no longer a requirement to wear a helmet does not preclude the adoption of the helmet defense.
While the adoption of the seat belt defense in Pasakarnis is of great importance when analyzing whether the helmet defense should be recognized in Florida, it is not dispositive of the issue. There are still significant differences between the use of a seat belt and the use of a helmet which require independent analysis.
In support of the adoption of this defense is the inescapable data which shows that helmets save lives. NHTSA studies show that unhelmeted motorcyclists are three times as likely to suffer brain injuries and that helmets reduce the risk of death by nearly 30 percent.29 Staff analysis of Florida Laws Ch. 2000-313 concluded that the increase in the severity of injuries could possibly result in an increase in insurance premiums as a result of medical care that is not covered by private insurance.30 If a helmet defense is adopted, it would have the effect of promoting safety and resources.
One of the greatest arguments against the defense is that it flies in the face of the fundamental doctrine that a tort feasor takes a plaintiff as he finds him. Moreover, mitigation of damages concerns a plaintiff’s conduct after an accident, not before. The use or nonuse of a helmet occurs prior to the negligent conduct of the defendant. Other courts have problems with the fact that defendants should not be able to diminish the consequences of their negligence by the failure of the injured party to anticipate the defendants’ negligence.31 While these policy arguments provide valid reasons for rejecting the application of the defense, they would be equally applicable to seat belt use and it would be logically inconsistent to apply them to the nonuse of helmets but not to the nonuse of seat belts. If the defense is to be rejected it must be based on factors that distinguish the use or availability of a helmet from that of a seat belt.
One of the most obvious differences in helmets and seat belts is that helmets are not standard equipment. The use of a helmet requires a person to take the additional action of purchasing the protective headgear. This would constitute a greater infringement on the personal freedom of an individual than does adopting the seat belt defense. The Warfel court recognized these differences but did not hold that a safety device must be within arm’s length before one’s failure to employ it can be argued to be fault.32 The court held that the issue is whether a plaintiff measurably contributed to his own injuries by failing to meet his obligation to conduct himself in a reasonable manner.33 The court posed questions that are relevant in determining to what degree, if any, the plaintiff acted unreasonably. Did the plaintiff own a helmet but leave it at home? Did the plaintiff borrow a motorcycle but decline to borrow the owner’s helmet with it? Were helmets of the type defendants’ experts say would have made a measurable difference reasonably available at a reasonable price?34 The fact that helmets are not as accessible as seat belts will create a greater obstacle for a defendant to overcome before a court or jury can find a plaintiff acted unreasonably, but this obstacle is not so great as to preclude such a finding in all circumstances.
Regardless of how one feels about this issue, the courts of Florida will be required to make this determination in the upcoming years. In Pasakarnis, the Florida Supreme Court has taken the position that safety issues can be balanced against an individual’s freedom to choose. Whether it is by expressly adopting the helmet defense or simply allowing evidence of nonuse of safety devices, such action will not restrict an individual’s freedom to enjoy the highways of Florida. Rather, the law will require each person to bear the consequences of his decisions. As the North Dakota Supreme Court stated when confronted with this issue, “There is a difference between saying, ‘It is up to you to decide whether or not to wear a safety helmet,’ and saying, ‘You will never, under any circumstances, have to suffer legal consequences for not wearing a helmet.’”35 In passing the recent amendment, the legislature gave the public the right to decide. It is now up to the judiciary to determine who should bear the legal consequences of the public’s decision.
1 Fla. Stat. §316.211(3)(b) (2001).
2 January 2001 U.S. Department of Transportation, National Highway Traffic Safety Administration Report, Motorcycle Helmet Use Laws Legislative Status (2001), at www.nhtsa.dot.gov/people/outreach/stateleg/mclegislative.html.
4 January 1998 U.S. Department of Transportation, National Highway Traffic Safety Administration Research Note, Further Analysis of Motorcycle Helmet Effectiveness Using CODES Linked Date (1998), at http://ntl.bts.gov/data/codes_mc.pdf.
6 1999 U.S. Department of Transportation, National Highway Traffic Safety Administration, Traffic Safety Facts (DOT HS 809 89), at www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/TSF99/Motorcycle99.pdf.
7 1999 Florida Department of Highway Safety and Motor Vehicles, Traffic Crash Facts, at www.hsmv.state.fl.us/reports/99persons.pdf.
8 Gaddy, 413 So. 2d at 1233.
12 Id. at 1234.
13 Warfel, 758 P.2d at 1331.
14 Id. at 1328.
15 Arizona adopted the seat belt defense in Law v. Superior Court, 755 P.2d 1135 (Ariz. 1988) (Law II). As was the case in Pasakarnis, when Law II was decided there was no mandatory seat belt law. Thus, the applicability of the seat belt defense was not dependent on a statutory duty to wear a seat belt.
16 Warfel, 758 P.2d at 1329.
17 Id. at 1332.
18 Kealoha, 844 P.2d 670.
19 Id. at 676.
20 Id. at 677.
22 Mayes v. Paxton, 437 S.E.2d 66 (S.C. 1993) (rejecting helmet defense while citing to state case law rejecting seat belt defense); Keller v. City of Spokane, 1996 WL 460256 (Wash. App. 1996) (rejecting helmet defense consistent with Washington’s rejection of the seat belt defense); Meyer v. City of Des Moines, 475 N.W.2d 181 (Iowa 1991) (rejecting both seat belt and helmet defense); Hukill v. De Gregorio, 484 N.E.2d 795 (Illinois App. Ct. 1985) (consistent with rejection of seat belt defense court rejected helmet defense); Halvorson v. Voeller, 336 N.W.2d 118, 119 (N.D. 1983) (adopting helmet defense consistent with adoption of seat belt defense); c.f. Lawrence v. Taylor, 8 P.3d 607 (Colo. App. Ct. 2000) (continuing to reject helmet defense despite legislative adoption of seat belt defense in 1999 based on prior case law of Dare v. Sobule, 674 P.2d 960 (Colo. 1984) (rejecting helmet defense consistent with rejection of seat belt defense)).
23 Pasakarnis, 451 So. 2d at 449.
25 Id. at 453.
29 January 1998 U.S. Department of Transportation, National Highway Traffic Safety Administration Research Note, Further Analysis of Motorcycle Helmet Effectiveness Using CODES Linked Date (1998), at http://ntl.bts.gov/data/codes_mc.pdf.
30 See Committee on Judiciary, House Final Analysis, Bill 117 (Fla. June 19, 2000).
31 See, e.g., Stehlik v. Rhoads, No. 99-3326, 2001 WL 21603 (Wis. App. Ct. Jan. 10, 2001).
32 Warfel, 758 P.2d at 1332.
35 Halvorson v. Voeller, 336 N.W.2d 118, 122–23 (N.D. 1983).
Don A. Dennis is the senior trial court staff attorney for the 14th Judicial Circuit. He received his J.D., with honors, from Florida State University in 1998.