Frequently we meet with new clients who have been injured in motorcycle accidents who were not wearing helmets. With the advent of spring the urge to ride and frequency of accidents increases. Often new clients will ask: “will I be found at fault because I was not wearing a helmet?” Generally, depending on the persons age, if the person is an adult the answer is “no.” However if the person is a child under the age of 18, the answer is not clear!
Indiana, like a number of other states, has a helmet requirement law on the books, but it only applies to those under 18 years of age. Indiana Code Section 9-19-7-1-1 states: “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 accident without a helmet.
When looking at Indiana law it would seem that, 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 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 seatbelts 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 7A Am.Jur.2d. Automobiles and Highway Traffic § 629.” State v. Eaton, 659 N.E.2d 232, 236 (Ind. Ct. App. 1995). That same court found that 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).
For those under the age of 18, the matter becomes more clouded. Unlike the seatbelt statute, there is no explicit mentioning of fault in the helmet statute. As of yet, the Indiana Courts have not fully addressed that specific issue. Comparative fault requires three elements: 1) a duty owed to the plaintiff, 2) a breach of that duty by the defendant, 3) which proximately caused plaintiff’s damage. State v. Eaton, 659 N.E.2d 232, 236 (Ind. Ct. App. 1995). Due to the statute, there is likely a duty for Plaintiffs under the age of 18 to wear a helmet. If the Plaintiff does not do so, that would likely constitute a breach. The factor that has not yet been addressed by Indiana Courts is the question of proximate causation (#3). Thus defense lawyers in Indiana continue to assert that the failure to wear a motorcycle helmet is comparative fault if the rider is under 18. Few have gone the extra step to hire expert medical testimony to prove the failure to wear a helmet caused or enhanced a particular injury (proximate cause).