Dear Bob;
I know that several states have enacted laws requiring kids to wear helmets when bicycling, but do any states make adult cyclists wear helmets?
T.Q.
Ariz.Bob;
This question came up at our weekly post-ride coffee break. If a car hits me while I'm riding my bike, and I'm not wearing a helmet, can the driver use that to blame me for my own injuries?
R.L.
New YorkDear T.Q and R.L.,
According to the Bicycle Helmet Safety Institute (www.helmets.org), the following states currently have bicycle helmet statutes in their codes:

State	Ages	Date	City Laws?
Alabama	16	1995	Yes
California	P5/18	1994	Yes
Connecticut	16	1997	No
Delaware	16	1996	No
Washington D.C.	16	2000	N/A
Florida	16	1997	Yes*
Georgia	16	1993	No
Hawaii	16	2001	No
Illinois	17	1997	Yes**
Louisiana	12	2002	No
Maine	16	1999	No
Maryland	16	1995	Yes
Massachusetts	P5/13	1994	No
New Jersey	14	1992	No
New York	P5/14	1994	Yes
North Carolina	16	2001	Yes
Oregon	16	1994	Yes
Rhode Island	16	1998	No
Tennessee	16	2000	Yes
West Virginia	15	1996	Yes

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*Florida permits individual counties to opt out of the law; two have done so.
** Illinois requires all bike messengers to wear helmets.
Ages - All cyclists under this age must wear a helmet.
Date - Date the law was enacted.
P - Passenger (For example, P4 means all passengers in child seats or bike trailers under 4 years old must wear a helmet.)
City Laws - Do some cities and/or counties have separate laws? In addition to the above list, the following states have no statewide law, but allow local governments to enact their own bicycle helmets laws, and at least one locality in each state has done so: Arizona, Kentucky, Michigan, Missouri, Montana, Nevada, Oklahoma, Texas, Virginia, Washington and Wisconsin. No state requires adults to wear helmets while bicycling (except for Illinois, which requires adult bicycle messengers to wear helmets while working) and I have found no local law that requires adult helmet use.(If you know of one, please send me an email.) On the other hand, four Canadian provinces require all cyclists to wear helmets: British Columbia, Nova Scotia, New Brunswick and Price Edward Island. Ontario and Alberta mandate that all cyclists under 18 use helmets. Internationally, Australia and Finland both have laws requiring all cyclists to wear helmets, Iceland has an under-15 helmet law, and New Zealand also has a bicycle helmet law, although I was not able to find out what ages are covered. A few states have a "no-blame" provision in their helmet laws that prevent the legal lack of helmet use from being used against the cyclist in court to prove contributory negligence or reduce damage awards. Let's say that driver D hits cyclist C, and as a result, C suffers $10,000 in injury. Cyclist C is an adult, and in this state only kids under 15 are required to wear helmets. C sues D for negligence and makes a strong case that driver D was at fault. However, D argues that if C was wearing a helmet, he would only have suffered $5000 in injury, so D should only have to pay C the smaller amount. A "no-blame" clause prevents a wrongful driver from doing this. In some states, the "no-blame" clause is included right in the helmet statute, but in others it is buried in code sections dealing with negligence or rules of evidence. I suggest that if you are interested in knowing if your state has such a provision that you consult the Bicycle Helmet Safety Institute website, local bicycle club websites, or websites run by state or local bicycle and pedestrian coordinators. Up until very recently, I would have answered the question as to whether a cyclist's legal lack of helmet use could be used against her in court with a resounding "no." In a 1991 case, Walden v. Montana, an appeals court overturned the decision of a trial court that refused to admit evidence of a lack of helmet for contributory negligence, but did allow it to be considered as a factor by the jury in determining appropriate damages. The appeals court said such evidence could not be used for either reason. In a 1997 New Jersey case, Cordy v. Sherman Williams Co., the court concluded that because no state law required adult helmet use, a reasonable person would not be on notice that failure to wear a helmet could be unreasonable and therefore such behavior could not be used to prejudice the cyclist's legal rights.Helmet use could not be put before the jury as either evidence of contributory negligence or as a factor to be considered in calculating appropriate compensation. In 2002, however, the United States District Court for the District of New Jersey overturned this in Nunez v. Schneider. The court said that:

"Evidence of plaintiff's [the bicyclist, who was suing a truck driver] failure to wear a helmet may go directly to the jury as evidence of comparative fault . . . The jury must engage in a two step inquiry. It must decide whether a reasonable person exercising ordinary care would have worn a helmet to avoid or mitigate injury in the event of an accident. If the answer is yes, it must next decide whether the evidence establishes that failure to wear a helmet contributed to the severity of the injuries. Only then may the jury reduce damages to the extent that a helmet would have decreased the injuries suffered."

Normally, federal courts do not interpret state law. The federal court should have referred the issue to the New Jersey State Supreme Court for consultation in a process called "certification." The fact that this court did not certify the issue of whether a cyclist can be blamed for the legal lack of helmet use may mean it is not good law. On the other hand, the issue itself probably won't go away, and I would urge cycling advocates to try to add no-blame clauses to their state bicycle helmet laws.
Good luck,
Bob
Research and drafting assistance provided by Bruce Epperson, law student, Nova Southeast University.
Now read the fine print:

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Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

If you have a cycling-related legal question, please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

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