Hysteria Over Bicycle Helmets Could Subvert Justice

Somewhere along the way, well-intentioned people ended up doing harm to the people they wanted to protect.  I do not know exactly when it happened, but sometime between the 1970s, when no one wore helmets to ride their bikes, to now, when those who do not are viewed as reckless fools, good intentions went off the tracks.  The desire of health care professionals to see fewer children with head injuries by wearing helmets was and is a good thing.  But that desire has morphed into into something harmful.

Riding with a helmet is no longer merely a safety issue, it is a credibility issue as well.  Ride without one and risk being viewed as lacking good sense, as reckless.  When the news media reports on a bicycle crash there is often mention of whether the cyclist wore a helmet or not that often seems like a non sequitur. Sometimes it is sounds like a down right accusation.  Oh, she wasn't wearing a helmet.  They she deserved to get hit by that bus.  Just last month, The Chicago Sun Times published a snarky piece* critical of Chicago's new bike share program, Divvy, for not offering helmets to riders.  "Waiting To Happen:  Clueless riders.  No helmets.  Divvys everywhere.  What could go wrong?" screeched the sarcastic headline.  

The media's focus on helmet wearing is both is misinformed and threatens to undermine a cyclist's ability to receive justice in the event of a crash.

Wearing a helmet may reduce the risk of sustaining certain kinds of injuries, primarily skull fractures.  Also, certain types of higher risk forms of cycling -- road racing, dirt jumping -- should be done with a protected dome.  However, risks of head injury from slow bike riding and "transportation cycling" seem to be pretty darn low.  In the very same snarky Sun Times article which insisted that bike share was a tragedy just waiting to happen was an important statistic:  Of the 679,925 trips taken on Divvy bikes up to that point, only 7 accidents had been reported to Divvy.  Seven, or, .001% of the trips taken resulted in an accident being reported to Divvy.  A look at safety figures from other bike share systems around longer suggest that serious injuries to Divvy riders will remain low.  The current issue of Momentum Magazine offers some impressive statistics regarding bike share.

After 4.5 million trips, no user in London, UK, has been seriously injured or killed in a traffic crash.  Minneapolis, MN, can boast the same impressive record after 1 million trips; New York City, NY, after 3.1 million trips; Washington, DC, after 4 million trips; and Mexico City, Mexico, after 1.6 million trips.

These numbers suggest that the decision not to wear a helmet while riding a slow bike for transportation is a perfectly reasonable choice to make.

The reasonableness of that decision is important in the context of an injury claim.  In a personal injury case no single factor is more important toward a successful outcome than the credibility of the person bringing the claim or lawsuit.  The plaintiff's credibility is important every step of the way.  The police who arrive at the scene of a crash will immediately assess the victim's credibility.  Very often police reports note whether the bicyclist was wearing a helmet, even though helmet use is not required by law.  A driver's insurance company will consider the credibility of the injured cyclist and will be more likely to resolve the case early if it seems that, along with the driver's negligence, the cyclist was doing everything right.  Ultimately, a jury will be asked to consider the conduct of the defendant.  But the plaintiff's conduct -- the actions of the person bringing the lawsuit -- is always considered as well.  If the plaintiff makes a poor impression, either in the courtroom or with their past conduct, a jury will be disinclined to render a favorable verdict even in the face of evidence of the defendant's negligence.  There is no question, that at trial, at least in an urban setting, jurors will wonder whether the bicyclist had been wearing a helmet at the time of the crash.  They will wonder this even though Illinois laws forbids them to do so.  Two Illinois cases, Clarkson v. Wright and Moore v. Swoboda, 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).

All of this constant attention on bicycle helmets may poison potential jurors' attitudes toward cyclists who choose to ride without one.  The impact such attitudes may have on any particular case may be hard to gauge.  The attorney trying a bicycle case in front of jury must question potential jurors in voir dire about their attitudes regarding people who ride their bikes in the city.  Attitudes about helmet use should be questioned in order to determine whether your client will get a fair shake.

But long term, the hyperventilating about helmet use must stop.  

* I was interviewed for the article and said that under certain circumstances a company that rented bikes could be held liable for failing to provide a helmet.  I expressed that I thought it unlikely that liability could arise in the bike share context but that sentiment did not quite come out in the article.