Ask Our Lawyer – February 2021

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

CRASHED AND WASN’T WEARING A HELMET – CAN I STILL SUE AND WILL THE INSURANCE COMPANY TRY TO HOLD IT AGAINST ME?  BEWARE OF THE SILENT “HELMET LAW”

Q.  Rod – In a helmet free state can you bring a claim for personal injuries if you are injured while riding without a helmet and were not the cause of the crash?  -A.B.A.T.E. of Illinois member

A.  Good question.  In Illinois, if a motorcyclist chooses not to wear a helmet, that decision cannot be considered negligent.  So the answer is no, but there are judges out there that need to be educated on the law as to that issue.  Not wearing a helmet in a helmet free state is your right much like driving a convertible or small car without a helmet, or riding a bicycle or a horse without a helmet.  If you are operating a vehicle legally, you should never be punished for failure to wear a helmet.  For example, if you suffered head or neck injuries, the insurance company may claim your injuries were caused by your decision to not wear a helmet. Their goal is to limit liability and assign as much fault to you as possible.  That defense is wrong, so our argument is that any legal activity should not be punished by allowing insurance companies to claim that your damages should be lessened for failure to wear a helmet.  I call this effort the “Silent Helmet Law” of insurance companies.

Here is where this nonsense comes from. When a plaintiff files a personal injury lawsuit,  some claim that Illinois and other states laws allow a defendant/insurance company to raise contributory negligence (735 ILCS 5/2-1116) as a defense. This theory suggests that the defendant is not responsible for all of the damages because the plaintiff also bears some liability by failing to wear a helmet. Could failing to wear a helmet—even though it is not required by state law—be considered negligent on the part of the plaintiff?  We say no way and that is how we approach ABATE cases when insurance companies attempt to raise that issue.  In short, motorcyclists who abide by traffic laws when they decide not to wear a helmet, should not be considered as contributing to their injuries.  Be on the alert for the insurance making this argument.  With a good lawyer on your side, you will be able to show that you are not responsible for any portion of your injuries by the failure to wear a helmet.

The law is similar in Indiana – a no helmet state for those over 18 years of age. Indiana Code Section 9-19-7-1-1 provides:  “An Individual less than eighteen (18) years of age who is operating or riding on a motorcycle shall do the following:  (1) Wear protective headgear meeting the minimum standards set by the bureau and (2) Wear protective glasses, goggles, or transparent face shields.” However there is no current Indiana case law which evaluates the question of fault of a minor being injured in a bike/motorcycle accident without a helmet. When looking at Indiana law,  so long as the rider is over the age of 18, evidence of the failure to use a helmet would be inadmissible in court.  This is because the lack of a helmet is not the “proximate cause” (i.e. reason for) the accident. This is the same principle that has been developed for seat belts though the Indiana seatbelt law applies to all people of all ages and specifically states that fault cannot be attributed to someone not wearing a seatbelt. The Indiana Court of Appeals has noted that “in a majority of jurisdictions, evidence of a motorcyclist’s failure to wear protective equipment is inadmissible in the absence of a statutory duty. See State v. Eaton, 659 N.E.2d 232, 236 (Ind. Ct. App. 1995). That same court found the motorcyclist in the case had no duty to wear a helmet or other protective eyewear, and thus the trial court did not err in prohibiting the state from introducing evidence of motorcyclist’s failure to use protective eyewear in motorcyclist’s action for injuries sustained in accident. State v. Eaton, 659 N.E.2d 232 (Ind. Ct. App. 1995).  Even with a minor, the no helmet issue must be a proximate cause of the injury.

Some insurance companies take great efforts to wrongfully use the fact that a motorcyclist was not wearing a helmet as a defense to injuries,  particularly head injuries. The purpose of trying to use such evidence is to suggest to a jury that the failure to wear a helmet contributed to causing the injury and, therefore, is a factor which may reduce the amount of compensation the motorcyclist may receive. That is misleading to a jury. 

To show how judicial comments can get out of hand, a judge in a federal case involving the City of Chicago made an inadvertent comment in a case that had nothing to do with motorcycles, bicycles or injuries.  This case shows how casual comments can cause motorcyclists problems when they present a case of personal injury while riding.  That federal case grew out of an incident in which a barge caused damage to a bridge of the City of Chicago.  In discussing whether the City was contributorily negligent in its maintenance of the bridge, the judge used an off the mark example noting that, “Even a thin-skulled bicycle-rider could be contributorily negligent for failure to wear a helmet.”   What if that judge made a similar comment as it concerns motorcyclists?  At ABATE we reaffirm that the law in Illinois, Indiana and most states take exception to that kind of judge “talk.”

Even though federal court decisions do not create authoritative precedent for state courts,  a state court judge may find a federal court’s ruling persuasive and in the absence of clear state law authority, may choose to follow it.  So we should be concerned that it is just a matter of time before an insurance defense lawyer in a motorcycle crash case cites that case to persuade a trial judge to consider that an injured bicyclist/motorcyclist was not wearing a helmet at the time of their crash.  

For over four decades I have argued on behalf of ABATE Members that Illinois cases Hukill v. DiGregorio, 484 N.E.2d 794 (2nd Dist. 1985) and Clarkson v. Wright, 483 N.E.2d 268 (1985),  hold that a failure to wear a helmet cannot be used to prove an injury victim’s contributory negligence or to reduce the compensation to which they may be entitled. The majority of courts addressing the issue have, for assorted reasons, rejected the admissibility of helmet evidence. The federal court comment about bike helmets was what is generally referred to in the legal world as dictum.  Dictum is a  remark by a judge that is not intended to create binding authority.  But that verbiage can cause harm and does not reflect Indiana nor Illinois law, nor the law of most states.  Spread the word.

WHY WE NEED A POA (power of attorney) AND WHAT IT DOES

Q.  We are semi retired and have time to enjoy riding all over the country.  We have heard that we need a POA.  Why is this necessary and what does it do for us? ABATE member.

A.  Everyone needs a POA for both health care and your property.  If you become disabled, someone has to take care of your business, pay bills etc. and make decisions for you.  Choose wisely the person that you make your agent.  They are in a position to rip you off, so this person must be a trusted friend or relative.  If you do not have someone that meets this requirement, some banks can be hired to take on this responsibility if your assets are large enough to meet their minimums.  For the average Joe this is a problem.  If you have a good friend that is a lawyer, you might try to talk them into serving for you in that capacity.  The good news is that most lawyers have insurance that would protect you if the lawyer got a brain tumor and stole your stuff.  ABATE LEGAL drafts and provides POAs free of charge to members.  

WHEN JAMES MADISON WROTE THE 4TH AMENDMENT REGARDING SEARCH AND SEIZURE, WAS HE THINKING OF NAKED PICTURES ON AN iPHONE?

Q.  My boyfriend talked me into taking compromising pictures of me on his Harley.  Then he was arrested for riding his motorcycle while intoxicated.  The cop who arrested him found his iPhone and of course the nude pictures of me.  Excited by his find, he called other officers over for a viewing of the photos of me.  This seems so wrong since some of the cops knew me and my family.  Did the officer violate our rights? ABATE member.

A.  As we know all warrantless searches are governed by the Fourth Amendment which protects us from unreasonable searches.  Reasonableness is the magic word here.  It has long been the rule that the area within the “wingspan” or “grab area” of the person being arrested may be searched, as well as the contents of his person.  This area may be searched without regard to the seriousness of the offense.  But the wonder of the Fourth Amendment is that by use of the word “unreasonable” it is positioned to be adaptable to the times.  Madison could never have envisioned the photos of you or the thousands of pages that can be stored in an iPhone.  Some courts view a smartphone as like any other container that is subject to searches.  However, other courts like the Supreme Court of Ohio, have held that the expectation of privacy is the reason that the police must get an additional warrant to search a phone’s contents.  In Ohio the cops would have been out of line, but this appears to be a minority view of the courts around the country.  Stay tuned on this one.

Ride Safe.

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2021.

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