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.