A former insurance law student of mine asked this week whether Pittsburgh Steelers quarterback Ben Roethlisberger’s failure to wear a helmet in his motorcycle accident earlier this month would be contributory negligence under Maryland law. Good question! Under the current state of the law, the answer is a qualified no.
The Maryland Court of Appeals addressed this issue 36 years ago in Rodgers v. Frush, 257 Md. 233 (1970). This case involved a motorcycle collision case in PG County where the Defendant sought to introduce evidence at trial from a medical doctor who would testify that the Plaintiff’s failure to wear a helmet exacerbated his injuries from the motorcycle accident. The Plaintiff argued that this evidence was not relevant to contributory negligence because it did not involve the Plaintiff’s or Defendant’s standard of care. The court agreed, and our high court affirmed. The court noted that while Maryland had passed a helmet law three years after the accident, this did not establish a standard of care.
I earlier said the answer is a qualified no because the court said there was not a standard of care that one should wear a helmet. There is now a helmet law in Maryland. But this appears to be dicta, given the core of the court’s holding that failing to wear a helmet does not go to the question of the standard of care.
A related question is whether this evidence could be admitted under the doctrine of avoidable consequences. Plaintiff compliance with the appropriate safety requirements could have avoided similar to the contractual rule of mitigation of damages, the damages that could have been avoided are reduced from the recovery.
The Court of Appeals in Rodgers considered this issue. The court determined that the doctrine of avoidable consequences applied only to conduct that occurred after the tort (again, analogous to the mitigation of damages). The court also cited a North Carolina case with approval that articulated that it also would not apply the doctrine of avoidable consequences because it would (1) not ask jurors to parse damages because this would invite verdicts on prejudice and sympathy contrary to the law, (2) create ‘unnecessary conflicts in result,’ and (3) degrade the law by reducing it to a game of chance. (I frankly do not understand how the latter two factors apply to the doctrine of avoidable consequences.)
The arguments on this helmet issue are very similar to the arguments on failing to wear a seat belt issue, which was addressed in an earlier blog post.
Here is how a few other jurisdictions have addressed this issue:
Colorado: The Colorado Court of Appeals found in Lawrence v. Taylor, 8 P.3rd 607 (Colo. Ct. App. 2000) that evidence of a motorcycle operator’s failure to wear a protective helmet was not admissible to show either negligence or a failure to mitigate damages by the motorcyclist.
Georgia: In a wrongful death motorcycle accident case, the Court of Appeals of Georgia ruled that riding a motorcycle without a helmet was in violation of a statute and constituted negligence as a matter of law if the violation was the proximate cause of the motorcyclist’s injuries/death. See Green v. Gaydon, 331 S.E.2d 103, 108 (1985).
Maine: The 1st Circuit Court of Appeals interpreting Maine law in Rodgers v. American Honda Motor Co., 46 F.3d 1 (1995) denied a motion to exclude evidence that the Plaintiff was not wearing a helmet when his ATV flipped over, causing the Plaintiff catastrophic brain injuries. The 1st Circuit considered the legislative history of Maine’s comparative negligence statute and found the purpose of the statute was to consider not just the question of liability but also the consideration of responsibility for the damages sustained. Because the statute called for a changed comparative negligence standard that required that Plaintiff must be less than 50% responsible for his or her injuries and all of the evidence showed the Plaintiff would not have suffered such a serious injury if he wore a helmet, the 1st Circuit found that trial court properly admitted the evidence.
South Carolina: In Mayes v. Paxton, 313 S.C. 109 (S.C.1993), the South Carolina Supreme Court affirmed the trial court’s finding that the defenses of contributory negligence and assumption of risk were insufficient because they were based on Plaintiff’s failure to wear a motorcycle helmet.
Texas: In Kennon v. Slipstreamer, 794 F2d 1067 (5th Cir. 1986) the Court applied Texas law in a strict liability case that focused primarily on eye protection equipment rather than motorcycle helmets. This case involved a shattered windshield on a moped. The court found that the percentage of the injury attributable to the Plaintiff’s negligence must reduce the Plaintiff’s recovery.