Maryland Injury Law Center

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:

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In his blog last year, Evan Schaeffer attached an article by Chicago attorney Paula E. Litt titled “Tips for Making Damages Testimony Come Alive.” Ms. Litt’s article offers twelve tips: (1) Speak plainly; (2) Establish credentials wisely; (3) Tell a good story; (4) Play from higher ground; (5) Show pictures; (6) Get the expert moving; (7) Use examples; (8) Keep it simple; (9) Be enthusiastic; (10) Don’t get caught short; (11) Know your expert; and (12) Don’t underestimate the jury.

Ms. Litt handles mostly copyright and insurance coverage cases so some advice seems tailored toward business litigation (it would be odd for an accident attorney to “be enthusiastic” when discussing with an expert the loss of future earnings of a father who was killed in a car accident). I also do not agree that attorneys should assume that the jury knows as much about the damages as the lawyer does, which she articulates under the otherwise sound notion of not underestimating the jury.

The only other “problem” with this article is that most of her sound advice is really directed to the expert, not the lawyer calling the expert to testify. As much as we would sometimes like to, we cannot change our witnesses.