Lack of a Helmet Cannot Be Used Against an Illinois Bicyclist at Trial

It seems that the first reaction anyone has upon hearing that a bicyclist was injured in a traffic accident was, well, was s/he wearing a helmet? A legitimate inquiry on its face, but it always sounds. . . accusatory; as if there is an clear correlation between helmetlessness and reckless bike riding. S/he wasn't wearing a helmet, then s/he got what s/he deserved. Silly. This post is not about whether bicyclists should wear helmets. (They should.) It is not about whether Illinois law requires bicyclists to do so. (It doesn't, yet.) Rather, it considers whether the lack of a bicycle helmet may be used against an accident victim at trial to either reduce or bar recovery.

In an Illinois personal injury case, a jury may compare the defendant's alleged negligence to any negligence committed by the injury victim and determine if the plaintiff's own conduct contributed to cause his or her own injuries. This is called "contributory negligence." At trial the judge will instruct the jury,

When I use the expression "contributory negligence," I mean negligence on the part of the plaintiff that proximately contributed to cause the [alleged] [injury] [death] [property damage].

I.P.I. 11.01

If a jury finds that the injury victim was more than 50% at fault for causing his or her own injuries then the plaintiff will be completely barred from recovering money damages, just like if the defendant is found not liable. However, if the jury finds that the plaintiff's conduct was 50% or less the cause of his or her own injuries then the jury's damage award will be reduced by that amount. 735 ILCS 5/2-1116(c)

Within the context of this law, the defense in a bicycle accident case may wish to present evidence to the jury that the injured bicyclist contributed to his or her injuries by not wearing a helmet. Illinois law, however, prohibits the defense from presenting evidence that the plaintiff was not wearing a helmet at the time of the alleged incident. Attorneys representing an injured bicyclist should file a motion in limine barring the defense from presenting evidence that the plaintiff was not wearing helmet. In 1985, two cases were decided that relate to this issue. In Clarkson v. Wright, 483 N.E.2d 268 (Ill. 1985) the supreme court held that evidence that a plaintiff in a motor vehicle accident case was not wearing seat belt at the time of the alleged occurrence is not admissible. The Court stated:

We agree with the majority view that failure to use a seat belt was not negligence or contributory negligence which caused the accident out of which plaintiff's injuries arose. At most, the failure to use a seat belt created a condition which possibly may have increased the severity of plaintiff's injuries. . . We conclude that . . . evidence of failure to wear a seat belt should not be admitted with respect to either the question of liability or damages.

Clarkson, 483 N.E.2d at 269-70. (This rule was later codified in Section 12-603.1 of the Illinois Vehicle Code.)

This rule of law was expanded to include motorcycle helmets in Hukill v. DiGregorio, 484 N.E.2d 795 (2nd Dist. 1985). In that matter, the appellate court, citing the Clarkson decision which came down just a few months earlier, held that the "helmet defense" should be barred from mitigating the plaintiff's damages. These two decisions created the general principal that in vehicular negligence cases evidence of the plaintiff's failure to use protective devices "is inadmissible for the purpose of establishing contributory negligence." Moore v. Swoboda, 571 N.E.2d 1056, 1071 (4th Dist. 1991).

The Clarkson, Hukill and Swoboda cases -- along with the fact that Illinois law does not mandate helmet use -- establish that a bicyclist's failure to wear a helmet may not be used as either a damages reducer or to bar recovery altogether. Remember, though, as I noted at the beginning of this post, jurors may be wondering whether a helmet was worn. They may be off put by silence on the matter during trial and hold it against the plaintiff, who owns the burden of proof at trial. If the injured bicyclist was wearing a helmet then the trial lawyer should note that fact.

Photos Of Yesterday's Ride of Silence

Yesterday was the Chicago Ride of Silence in honor of bicyclists killed by motor vehicles on city streets. The procession of bikes took riders from Daley Plaza in the Loop, north past several (too many) Ghost Bikes erected as memorials to riders who lost their lives. Serge Lubomudrov has posted some wonderful photos of yesterday's event. Click here to view them.

Bicycle Accident Claim Successfully Resolved In Case Against Uninsured Motorist

Today we successfully resolved a personal injury case arising from a bicycle accident that occurred in October, 2009 on West Montrose Avenue, near Homer Park, in Chicago. Our client was riding his bike along the right side of Montrose when a left turning motorist struck him. We were able to track down a witness who explained that the driver was completely at fault for the incident. Though the driver was uninsured we were able to secure a settlement by making a claim under the uninsured motorist coverage of our client's own auto policy.

Our client's medical bills were initially paid by his health insurance provider. However, because settlement was procured not from a third party, i.e. the driver, but instead from our client's own coverage, no right of subrogation or reimbursement could be asserted, maximizing our client's recovery.

Chicago's Ride Of Silence This Wednesday

A reminder: The Ride Of Silence in honor of fallen bicyclists in this coming Wednesday, May 19th. In Chicago, riders will gather at 6:30 p.m. at Daley Plaza and will get rolling at 7:00 p.m. The ride will travel north past several ghost bikes placed in memory of cyclists killed on city streets. It will end at Damen & Wellington - the location of Liza Whitacre's ghost bike. Rides will also commence from a number of suburban locations. Click here for more details and to see how to participate in this worthy and important event.

Safety Commission Announces Recall of Niner Bike Frame Due to Welding Defect

Niner Bikes of North Hollywood, California and the U.S. Consumer Product Safety Commission announced yesterday the recall of the company's "Jet 9" full suspension, aluminum mountain bike frame. "A welding deficiency can cause the bicycle frames to crack along the welds of the front triangle of the bicycle. This can cause the rider to lose control and crash," according to the Commission. If you own one of these bikes stop using it and contact Niner Bikes about replacement options. Click here to read the complete recall release.

Nominate The Chicago Bicycle Advocate

If you enjoy The Chicago Bicycle Advocate blog please consider nominating it for the Crank - World Cycling Blog Rankings. To fill out the quick and easy form click here.

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Bicycle Safety Video From 1950

I really like this bicycle safety video from 1950 because it emphasizes the bicycle as a vehicle, a means of transportation, not merely a toy. Despite the film's age all of the safety recommendations are timeless and applicable to today. The only thing I may add is a helmet for little Jane or Johnny. Thanks to the folks at Urban Velo for making me aware of this video.

Taxi and Bicyclist Collide In Chicago Loop, Driver Flees Scene

A Loop bicyclist was transported to Northwestern Memorial Hospital in serious-to-critical condition yesterday after a collision with a taxi, according to the Chicago Sun-Times. It is reported that the bicyclist collided with the cab when the driver halted to pick up a fare. The driver was later cited for leaving the scene of an accident.

From published accounts it is not clear how the accident occurred. From personal experience commuting by bicycle into the Loop, it is not uncommon for taxi operators to drive erratically when stopping to pick up a fare. It is unknown whether the injured cyclist had been closely following the taxi just prior to the accident. It is important not to jump to conclusions about how this accident took place. Hopefully, the bicyclist will make a full and speedy recovery.

What is clear is that under Illinois law, leaving the scene of an accident is a no-no. A driver of a vehicle must immediately stop his or her vehicle at the scene of an accident involving personal injury or death. 625 ILCS 5/11-401. Failure to do so may result in a felony conviction. 625 ILCS 5/11-401. The driver must also give his or her name, address, registration number and identify the vehicle's owner, and render aid to anyone injured in the accident. 625 ILCS 5/11-403.

Two Bicycle Recalls Announced

Yesterday the U.S. Consumer Product Safety Commission announced two bicycle recalls. First, several high-end Specialized mountain bikes are being recalled due to a shock absorber mount that can break causing a fall hazard to the rider. The recall applies to 2010 26" Epic and 26" Era Bicycles. Click here to view the complete recall release.

Second, chopper-style bicycles from Nirve Sports, Ltd. are being recalled due to dangerous stems than can crack and cause the rider to lose control. The recall applies to models called "Red Star", "Skulls" and "Cannibal". Click here to view the complete recall release.

Another Crazy Driver, Another Chicago Area Road Rage Incident

On Tuesday evening CBS 2 Chicago reported on a road rage incident in which a bicyclist, Tim Heath, was intentionally struck by a motorist near 2779 North Milwaukee Avenue in Chicago. Apparently, the two had gotten into an argument over lane space before the driver lost it and decided to run the biker down. He was lucky to avoid serious injury. Here is a link to the full story with video. At the end of the piece the reporter, Vince Gerasole, states that the police said that the woman agreed to turn herself in. It is unclear presently whether that has occurred and what charges she may face.

If precedent is any guide, the driver could face jail time. On Sunday I posted a story about a similar incident in which a driver intentionally struck a bicyclist in Naperville. In that matter, the driver reached a plea deal with prosecutors in which she pleaded guilty to felony aggravated battery in a public place. She was sentenced to 42 days in jail (but will serve only half that time for some reason). She is also to pay $3,252 in restitution to the bicyclist and $1,620 in fines and court costs. Let's hope that this most recent road rage incident is aggressively pursued by Chicago police and the Cook County States Attorney's Office. Hopefully CBS will also provide some follow up.

Crazy Old Woman Who Attempted To Run Down Young Bicyclist Is Headed To Jail

A 67 year old woman, Mary Rehm, who attempted to run down a teenage boy with her car as he rode his bicycle in Naperville last July is going to jail. The teenager was only unhurt thanks to his quick reflexes. He leaped from his bicycle just in time to avoid the collision which left his bicycle firmly impaled to the front of the crazy woman's vehicle. Hooray for luck and justice! Read more by clicking here. And here.