Motorcyclists, insurers bang heads over helmets

Milwaukee Journal Sentinel ^ | Aug. 26, 2003 | DENNIS CHAPTMAN

[BraveMan]

Madison - Wisconsin juries could not reduce damage awards in cases where motorcyclists are hurt or killed while not wearing helmets, under legislation backed by bikers at a public hearing Tuesday.

"Society says helmets must be safe and that motorcycles must be dangerous, and that's not true," Wisconsin Rapids motorcyclist Kirk "Hard Tail" Willard told the Senate Judiciary, Corrections and Privacy Committee.

The measure, which would also apply to snowmobilers and riders of all-terrain vehicles, is a response to a 2002 state Supreme Court ruling that held that the failure of an ATV rider to wear a helmet could be considered by a jury as a basis for reducing damages.

Just as Milwaukee's celebration of Harley-Davidson's 100th Anniversary prepares to kick into high gear, bikers supporting the proposal squared off against the insurance industry over the measure.

Milwaukee personal injury lawyer Michael Hupy, who said he has represented hundreds of bikers in accident cases, told the panel that the Supreme Court ruling puts motorcyclists in a perilous legal position if they are injured and their case goes to court.

Under the high court ruling, juries can weigh whether a motorcyclist's failure to wear a helmet played a role in their injury, and they can reduce damage awards by any amount they see fit.

"If there is no law requiring a helmet, there shouldn't be a penalty for not wearing a helmet," Hupy said.

In contrast, the state limits the reduction of damage awards to 15% in car crash cases in which occupants were not wearing seats belts, Hupy said.

The bill, sponsored by Sen. Dave Zien (R-Eau Claire), would prevent non-use of helmets from being introduced as evidence in court cases and prevent the reduction of damage awards for failing to wear helmets.

Zien's bill would not apply to those now required by law to wear a helmet, including those with instruction permits and riders younger than 18.

The legislation also includes a provision that would allow bikers to introduce evidence of helmet use when they sue helmet manufacturers for product defects that cause injury.

Eric Englund, lobbyist for the Wisconsin Insurance Alliance, said the vehicle insurers' group opposes the legislation because it would strip juries of their ability to weigh the facts in motorcycle injury cases.

"Heaven forbid that a jury in Wisconsin doesn't get the choice to take a look and say, 'Geez, should he or she have been wearing a helmet? And shouldn't he or she bear some responsibility?' " Englund said.

In the late 1960s and early 1970s, most states adopted mandatory motorcycle helmet laws under pressure from the federal government. Wisconsin repealed its law in 1978.

Personal injury lawyer Joe Weigel told the panel that the insurance industry has the resources needed to get damage awards reduced.

"The insurance companies always have experts at hand and can afford to buy them," said Weigel, who has ridden motorcycles for 45 years. "The little guy can't afford to fight that battle."

Zien, himself an avid biker, said that he believes helmets can cause injuries by limiting riders' ability to see, hear and respond to traffic situations.

In effect, Zien said, the Supreme Court ruling creates a de facto helmet law by potentially penalizing injured motorcyclists who choose not to wear helmets.

The panel did not take a vote on the legislation.

Dave Dwyer, legislative chairman for the pro-biker group ABATE - which stands for A Brotherhood Against Totalitarian Enactments - accused the insurance industry of "corporate greed."

"I'm allowed to ride a motorcycle in this state without a helmet," said Dwyer of Portage. "If one of their clients hits me and causes damage to me, why should those damages not be covered because I am in full compliance with the laws of the state of Wisconsin?"

Englund, however, said that juries should have the ability to decide whether bikers' actions were prudent.

"If I've got a pool in my backyard and a friend comes over and decides to dive in the shallow end and bangs himself up big time, we don't have a state law saying, 'Don't dive in the shallow end of the pool.' We let the jury decide," he said.

[BraveMan]

This should make for some interesting discussions regarding personal liberty . . .

[WestPacSailor]

"I'm allowed to ride a motorcycle in this state without a helmet," said Dwyer of Portage. "If one of their clients hits me and causes damage to me, why should those damages not be covered because I am in full compliance with the laws of the state of Wisconsin?"

I personally believe that riding without a helmet is one of the dumbest things a person can do, however comma Mr. Dwyer does make a compelling legal argument. Not smart, but legally correct.

[freeangel]

My personal liberty(and economic situation in the form of higher insurance rates) is threatened when some jerk biker is in an accident without a helmet. A helmet was the reason my sons life was saved. I don't have a problem with a biker not wearing a helmet--just sign a waiver that he will be held responsible for any resultant head injuries.

[-YYZ-]

Seems reasonable to me - personal liberty, personal responsibility. If you get brain damaged in an accident where a helmet likely would have prevented that damage, aren't you partially responsible for the outcome? Oh, and the bit about "a provision that would allow bikers to introduce evidence of helmet use when they sue helmet manufacturers for product defects that cause injury" sounds like the work of ABATE (know why there's not as good a selection of helmets in the US as other parts of the world, and almost no US helmet mfrs left? Lawsuits on bogus grounds drove them out), which is full of wack-jobs IMO.

Do what you like, but don't come crying to me when you crack your head open like a ripe melon on the pavement, or your unbuckled helmet comes off your head when you need it (duh!).

[smiley]

Guess you could say..."Stupid is as stupid does."

[BraveMan]

. . .just sign a waiver that he will be held responsible for any resultant head injuries.

Regardless of who is at fault?

[freeangel]

Let the injured biker take it up with the other guy if he wasn't at fault. But he still needs to take responsibility for his own injuries if a helmet would have prevented them.

[WestPacSailor]

j...ust sign a waiver that he will be held responsible for any resultant head injuries.

Ought to be a requirement for receiving a motorcycle license.

[Wolfie]

Indeed, "costs to society" for personal choices is the battle cry of the nanny state, and should be applied to all.

[freeangel]

In the operating room, we do not refer to these as motorcycle accidents, but as our newest organ donors. Brain dead is as brain does.

[lepton]

Under the high court ruling, juries can weigh whether a motorcyclist's failure to wear a helmet played a role in their injury, and they can reduce damage awards by any amount they see fit. "If there is no law requiring a helmet, there shouldn't be a penalty for not wearing a helmet," Hupy said.

There's no penalty in the legal sense. There's responsibility.

[Wolfie]

That's why they call 'em "donorcycles".

[Rubber_Duckie_27]

If someone is stupid enough to ride a motorcycle without a helmet (law or not), then they should waive any right to compensation if they have a brain injury or die.

I can't tell you how many motorcyclists I see tearing around at 80 MPH on some cheap sport bike wearing nothing but shorts and sneakers. If those idiots crash - and survive having half their skin abraded off on the road - then they should be responsible for their own medical care and rehabilitation.

[Blood of Tyrants]

The thing about it is of you study crashes resulting in the death of a motorcycle rider, there is no correlation between wearing a helmet and survivability.

However, in LOW SPEED crashes where relatively minor injuries are involved, a helmet GREATLY increases your chances of survival.

[Blood of Tyrants]

The thing about it is of you study crashes resulting in the death of a motorcycle rider, there is no correlation between wearing a helmet and survivability.

However, in LOW SPEED crashes where relatively minor injuries are involved, a helmet GREATLY increases your chances of survival.

My personal prefrence is to wear the helmet figuring that even if the helmet protect me half the time, it is better than not at all.

[BraveMan]

According to your line of thinking, the family of Randolph E. Scott, 53, of Hardwick, Minn should waive any right to compensation from Rep. Bill Janklow because Scott was not wearing a helmet when he met this . . .

[Chancellor Palpatine]

Sorry - seen too many minor bike wrecks where helmets got scuffed or bounced and the rider walked away. Without the helmet, they'd be toast.

[Balding_Eagle]

In the operating room, we do not refer to these as motorcycle accidents, but as our newest organ donors

I heard the same thing from a local doctor who called in to a talk show.

And how did he refer to those who DID wear helmets? Quadriplegics.

[PeterPrinciple]

"If you have a $10 head, wear a $10 helmet"

This was one of the best ads I ever remember for Bell Helmets. That was 15 years ago and Bell helmets were $150. I still have my Bell.