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Meyer v. City of Des Moines9/18/1991
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There was substantial evidence to support the jury's apportionment of fault on all other specifications of negligence submitted.
In the damage phase, the district court properly refused to instruct on David's failure to wear a helmet. A moped operator has no statutory duty to wear a helmet. We decline to hold that a moped operator has a common law duty to do so. We defer to the legislature on the question whether a duty to wear a helmet should be mandated.
On remand, the district court shall only try the issue of liability because there was no error in the damage phase of the trial. Upon retrial, the total amount of the plaintiffs' damages will be deemed to be the amount established by the jury in the damage phase. Cf. Schwennen v. Abell, 430 N.W.2d 98, 104 (Iowa 1988) (fault of injured spouse was incorrectly imputed to deprived spouse's consortium claim; new trial on deprived spouse's consortium claim ordered on liability but not on damages).
On the motion to retax costs, the district court awarded more than the expert witness fee statute allowed. And the court incorrectly taxed costs against the defendants for two depositions that were not used at trial and for one deposition paid for by the defendants.
REVERSED AND REMANDED FOR NEW TRIAL.
All justices concur except LARSON and SNELL, JJ., who dissent.
LARSON, Justice (dissenting).
I dissent from Division II(C) regarding apportionment of fault for a plaintiff's failure to wear a helmet. While not wearing a helmet does not contribute to the cause of the accident, it certainly contributes to the injuries. This case is a good example. A motorcycle rider's decision not to wear a helmet is no different, in its effect, from a decision to operate the motorcycle itself in a negligent manner. Failure to wear a helmet should be a consideration in apportioning fault under Iowa Code chapter 668.
Despite the fact that Iowa does not have a mandatory helmet law, a person has always had the duty to act prudently with respect to his own safety. Even though the legislature has decided not to make it a crime to operate a motorcycle without a helmet, this has no bearing on the question of whether the operator is at fault for increasing the risk of his own injury . A duty to exercise care for one's own safety is well established in our common law.
SNELL, J., joins this dissent.
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