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Inadmissibility of Helmet Nonuse under New Hampshire Law
Kevin F. Dugan and Jared R. Green
Adults riding motorcycles, snowmobiles, ATVs, and bicycles are not required by New Hampshire law to wear helmets. Yet, when a person who was not wearing a helmet seeks damages for injuries sustained due to the fault of another, the defense will want the jury to know about the helmet nonuse. New Hampshire law does not permit the introduction of such evidence.
II. Applicable Law:
The New Hampshire Supreme Court has never addressed the issue whether an adult's failure to wear a helmet is admissible to prove comparative fault. However, it has ruled on the virtually identical issue whether the defense in a motor vehicle collision case can introduce evidence of a motorist's failure to wear a seat belt.
In Thibeault v. Campbell, a two car crash left the two drivers injured and a passenger dead. The drivers sued each other and the estate of the passenger sued both of the drivers. Neither the decedent nor the driver of her vehicle were wearing their seatbelts. The cases were consolidated for trial and Judge Perkins issued a pretrial ruling barring any evidence of the fact that the two women were not wearing seatbelts. The jury apportioned seventy percent of the fault to the male driver of the first vehicle and thirty percent of the fault to the woman driving the second vehicle and awarded $1.5 million to the decedent's estate.
On appeal, the male driver argued that the failure of the female driver and her passenger to wear seat belts significantly contributed to their injuries and should have been admitted as evidence of their comparative negligence. The Supreme Court began its analysis by reviewing an earlier decision in which it held that a truck passenger was not contributorily negligent when he sat on the floor of the truck and draped his foot out of the cab. The Court quoted from its opinion in that case where it explained that the passenger "'is not to be held careless because he did not look out for dangers he had no occasion to anticipate. There is no carelessness in encountering dangers not reasonably to be sensed and not in fact known. . . . If his position was careless, it was not so in his relationship with the defendant from whom no menace was indicated.
It is not negligent for one to assume that another will do his duty when there is no occasion to assume otherwise . . .'”
The Court went on to cite a more recent decision in which it held that a vehicle owner could not be held negligent for failing to remove the keys from his vehicle, which was subsequently stolen and involved in a collision. According to the Court, “'[n]ot every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.' The vehicle owner had no duty to guard against the events that caused the injuries because they did not present a reasonably foreseeable danger."
The Court said these two decisions lead to the conclusion that Judge Perkins properly excluded evidence of the women's failure to wear their seatbelts. It explained its reasoning as follows:
In order for one's conduct to constitute tortious negligence,
it must be in breach of an existing duty and create a foreseeable
risk of harm to someone to whom that duty is owed. The failure
to wear a seat belt does not, by itself, create an unreasonable risk
of injury. The injuries that occur in a case such as the one before
us are the immediate result of a collision caused by the negligence
of another. Although there is the potential for an accident every
time an automobile is used, this mere possibility does not make
an automobile occupant responsible for anticipating the accident-
causing negligence of another. Because the accident-causing
negligence of another driver is not considered a readily foreseeable
danger, there can be no corresponding legal duty under the common
law to guard against it by wearing a seat belt.
Accordingly, the Court held that "evidence of a party's failure to use a seat belt is inadmissible to show negligence where the nonuse may have contributed to the party's injuries but was not a cause of the collision itself."
Three years before Thibault was decided, Judge Devine of the federal district court correctly predicted that New Hampshire would follow the "vast majority of high state courts and state legislatures that have considered the issue [and] concluded that evidence of the nonuse of seat belts is not admissible for the purpose of proving plaintiffs' negligence." He also held that evidence of seat belt nonuse was inadmissible for purposes of establishing the plaintiff's failure to mitigate damages. On this issue, he explained that our Supreme Court had applied the duty to mitigate damages only to a plaintiff's acts performed subsequent to the event giving rise to her tort claim. Thus, the failure to wear a seat belt cannot qualify because it is a decision made prior to the collision.
Four years after Thibault, Judge Devine presided over a case arising from the death of a National Guardsman in a motor vehicle accident while on active duty in Saudi Arabia. The decedent's estate filed a products liability claim against the manufacturer of the vehicle in which he was riding. Before trial, the plaintiffs moved to exclude evidence of the fact that the decedent was not wearing a seat belt or his military helmet at the time of the incident. Judge Devine granted the plaintiffs' motion noting that a plaintiff's failure to wear a seat belt is irrelevant to comparative fault or mitigation of damages and concluding that "the same principles are applicable to nonuse of a helmet by military personnel."
Judge DiClerico of the federal district court further extended New Hampshire's seat belt rule to cover the failure of a decedent to wear a safety vest and kill-switch lanyard while operating a power boat. In that case, the decedent took the boat for a test ride on Lake Winnipesaukee and was thrown from the operator's position but grabbed a bar on the back of the boat. While he was hanging from the back of the boat, he came into contact with the propellers and was killed. His estate brought suit against the boat's manufacturer alleging that it was defectively designed. Prior to trial, the plaintiffs moved to exclude evidence that the decedent had not been wearing a life vest or the kill-switch lanyard that was supplied with the boat. The switch was supposed to be attached to the boat's operator and it was designed to stop the motors if the operator moved a certain distance away from the operating area.
Judge DiClerico noted that the defense did not contend that wearing a life vest or the kill-switch would have affected the operation of the boat. Thus, he likened this case to the garden-variety automobile seat belt case and explained that the decedent's "failure to wear the lanyard did not cause the boat's unexpected action . . ., which is the accident alleged by the plaintiffs." He also rejected the defendant's attempt to distinguish the automobile seat belt case by arguing that the possibility of being thrown from the operator's position in a power boat is more foreseeable than the possibility of being involved in a motor vehicle collision. He explained that "the mere possibility that the boat might be in an accident does not make [the decedent] responsible for anticipating the allegedly defective condition of the boat or the resulting harm."
Citing Thibault and Judge Devine's decisions, Judge DiClerico wrote, "evidence of seatbelt nonuse is not admissible to show fault or failure to mitigate damages. The rule is applicable to preclude evidence of the nonuse of other safety devices to show fault or failure to mitigate damages." Accordingly, he held that the defendant manufacturer was precluded from introducing evidence that the decedent was not wearing a life vest or the kill-switch lanyard at the time of the accident for the purpose of showing comparative fault, product misuse, assumption of the risk, or failure to mitigate damages.
As Judge Devine recognized in the case of the National Guardsman killed in Saudi Arabia, the failure of a vehicle operator or passenger to wear a helmet is indistinguishable from the failure to wear a seat belt. Evidence of seat belt nonuse is inadmissible because there is no legal obligation to guard against the negligence of another and because such nonuse does not contribute to cause the collision. The same is true of helmet nonuse. Similarly, the nonuse of a seat belt is inadmissible on the issue of mitigation of damages because it is not an act or omission that occurs after the injury-causing event. Again, the same is true of helmet nonuse.
New Hampshire law on these issues is consistent with the majority of states that have addressed the admissibility of evidence of helmet use for purposes of comparative fault or mitigation of damages. Absent a statutory duty to wear a helmet or proof that the absence of a helmet was the cause of an accident, evidence of helmet nonuse is inadmissible to prove comparative fault or mitigation of damages.
Evidence of a plaintiff's failure to wear a helmet is inadmissible at trial in a suit seeking damages for injuries suffered in an accident involving a motorcycle, snowmobile, ATV, or bicycle. One can readily imagine how helmet nonuse might negatively affect a jury so it is critically important to get a pretrial order precluding such evidence to prevent the proverbial cat from escaping the bag and to ensure that the plaintiff's case is resolved fairly on the merits.
. 136 N.H. 698 (1993).
. Id., 136 N.H. at 699-700.
. Id., 136 N.H. at 700 (citing Piateck v. Swindell, 84 N.H. 402 (1930)).
. Id., 136 N.H. at 700-701 (quoting Piateck, 84 N.H. at 403).
. Id., 136 N.H. at 701 (citing Manchenton v. Auto Leasing Corp., 135 N.H. 298 (1992)).
. Id. (quoting Manchenton, 135 N.H. at 305).
. Id. (citations omitted).
. Id., 136 N.H. at 701-02.
. Forsberg v. Volkswagen of America, Inc., 769 F.Supp. 33, 35 (D.N.H. 1990).
. Id., 769 F.Supp. at 37.
. Id. (citations omitted).
. Ritch v. AM General Corporation, 1997 WL 834214 (D.N.H. 1997).
. Id. at *2 (citing Thibault and Forsberg).
. Warren v. American Marine Holdings, 2002 WL 818296, 2002 DNH 087 (D.N.H. 2002).
. Id. at *1.
. Id. at *2.
. Id. at *4.
. See, e.g., Hardy v. Hoefferle, 743 N.W.2d 843, 846-47 (Wis.App. 2007), rev. denied, 746 N.W.2d 812 (Wis. 2008) (affirming summary judgment excluding evidence of helmet negligence affirmative defense); Piche v. Nugent, 436 F.Supp.2d 193, 204-206, 210 (D.Me. 2006) (excluding expert testimony on nonuse of helmet relating to comparative fault and mitigation of damages);Burrell ex rel. Schatz v. O'Reilly Automotive, Inc., 175 S.W.3d 642, 655 (Mo. App. 2005) (operator of motorized scooter used for assistance of disabled persons had no common law duty to wear a helmet); Lawrence v. Taylor, 8 P.3d 607, 609 (Colo. Ct. App. 2000) (affirming exclusion of evidence of helmet nonuse for negligence and mitigation of damages issues); Mayes v. Paxton, 437 S.E.2d 66, 70 (S.C. 1993) (affirming summary judgment on lack of duty to wear helmet and dismissing contributory negligence and assumption of risk affirmative defenses); Kealoha v. County of Hawaii, 844 P.2d 670, 677 (Haw. 1993) (affirming exclusion of evidence of helmet nonuse because irrelevant and inadmissible); Meyer v. City of Des Moines, 475 N.W.2d 181, 186-188, 191 (Iowa 1991) (listing cases and joining states that exclude evidence of helmet nonuse); Hukill v. DiGregorio, 484 N.E.2d 795, 796 (Ill.App. Ct. 1985) (affirming exclusion of evidence of helmet nonuse on issues of comparative fault and mitigation of damages); Dare v. Sobule, 674 P.2d 960, 963 (Colo. 1984) (finding reversible error to admit evidence of nonuse of motorcycle helmet for comparative fault or mitigation of damages); Bond v. Jack, 387 So.2d 613, 616 (La.App.1980), aff'd sub nom. Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981) (motorcycle operator not contributorily negligent in failing to wear helmet);Rogers v. Frush, 262 A.2d 549, 551-52 (Md.. 1970) (excluding expert testimony of neurosurgeon on effect lack of helmet had on producing or aggravating plaintiff's injury because irrelevant to issues in case); Burgstahler v. Fox, 186 N.W.2d 182, 183 (Minn. 1970) (affirming exclusion of evidence of helmet nonuse).