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Meyer v. City of Des Moines9/18/1991
w or statutory duty to wear a helmet.
The court gave this instruction because there was some expert testimony about enhancement of head injuries due to a failure to wear a helmet.
Whether a moped or motorcycle operator has a duty to wear a helmet is an issue of first impression for us. Though there are several decisions outside of Iowa involving failure to wear a helmet, most deal with the analogous issue of failure to use a seat belt.
Generally, evidence of nonuse of a helmet or seat belt has no relevancy on the issue of liability. This simply means that rarely will a failure to use such protective devices contribute to the cause of an accident. Halvorson v. Voeller, 336 N.W.2d 118, 119 (N.D.1983); but see Curry v. Moser, 89 A.D.2d 1, 6-8, 454 N.Y.S.2d 311, 315 (1982) (plaintiff's failure to use available seat belt could be considered as evidence of comparative negligence where car door opened and plaintiff fell out). Failure to use a helmet or seat belt may, however, be a contributing cause to the injuries sustained and so may be relevant to the issue of damages. Halvorson, 336 N.W.2d at 119; Helmetless Motorcyclists--Easy Riders Facing Hard Facts: The Rise of the "Motorcycle Helmet Defense", 41 Ohio St.L.J. 233 (1980); Note, The Seat Belt Defense: A Comprehensive Guide for the Trial Lawyer and Suggested Approach for the Courts, 56 Notre Dame L.Rev. 272 (1980).
No Iowa statute requires the use of a helmet so we are left to decide whether there is a common law duty. Most courts that have faced the issue-- whether in the context of helmets or seat belts--have decided there is no such duty. This has been the case whether contributory negligence as a complete bar to recovery, or comparative fault, or comparative negligence is the controlling law.
Other courts have allowed evidence of nonuse on the question of damages. Although these courts are in the minority, their numbers are growing. Courts that have refused to find a common law duty to use seat belts or wear a helmet have relied on a variety of reasons. One court has summarized some of these reasons:
First, a defendant should not diminish the consequences of his negligence by the failure of the injured party to anticipate defendant's negligence in causing the accident itself. Second, a defense premised on an injured party's failure to wear a protective helmet would result in a windfall to tortfeasors who pay only partially for the harm their negligence caused. Third, allowing the defense would lead to a veritable battle of experts as to what injuries would have or have not been avoided had the plaintiff been wearing a helmet.
Dare v. Sobule, 674 P.2d 960, 963 (Colo.1984) (citations omitted).
Other courts have declined to find a common law duty because of the way courts have historically used the doctrine of mitigation of damages, sometimes called the doctrine of avoidable consequences. These courts say the doctrine comes into play only after the negligent act of the defendant. The nonuse of a helmet or a seat belt, of course, occurs before the defendant's allegedly negligent act. So the nonuse is not consistent with any burden on the plaintiff to minimize damages. See, e.g., McCord v. Green, 362 A.2d 720, 725 (D.C.App.1976); State v. Ingram, 427 N.E.2d 444, 448 (Ind.1981); Welsh v. Anderson, 228 Neb. 79, 83-84, 421 N.W.2d 426, 429 (1988); Hagwood v. Odom, 88 N.C.App. 513, 516-17, 364 S.E.2d 190, 192 (1988).
Finally, courts have declined to find a common law duty because the legislature has not mandated helmet or seat belt use. According to these courts, the decision whether to mandate use of helmets or seat belts is one of policy and best left to
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