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The emergence of the helmet defense in Florida.

Article Excerpt
Every March, thousands of motorcycle enthusiasts descend upon Daytona Beach, Florida, and the otherwise quiet Florida beachside community becomes the center of the motorcycle world. This March, for many of them it was the first time in years that they could legally forego their helmets and feel the wind in their hair, thanks to a recently enacted statute. Florida Laws Ch. 2000-313 amended F.S. [section] 316.211(2001) to allow riders over the age of 21 who have acquired insurance to choose whether they wish to wear a helmet. (1) Though the amendment has been hotly debated for many years, its passage does not end the debate in Florida; rather, it shifts the forum from the legislature to the judiciary. The issue is no longer whether riders should have the choice to wear a helmet, but who should bear the consequences when a person chooses to exercise the right to forego a helmet and is involved in an accident in which the use of a helmet could have prevented injuries.

This article seeks to point out the various issues and policy concerns that will confront both practitioners and the judiciary as a result of this statutory amendment. With the passage of the bill, Florida aligned itself with 27 other states that allow operators above a certain age to decide whether to ride with or without a helmet. (2) Twenty states have mandatory helmet laws for all operators, and three states (Colorado, Illinois, and Iowa) have no laws relating to helmet usage. (3) National Highway Transportation and Safety Administration (NHTSA) studies show that when states have mandatory helmet laws, compliance is nearly 100 percent. (4) However, without mandatory helmet laws, helmet usage drops to roughly 50 percent. (5)

According to an NHTSA study, Florida had the second highest number of total fatalities in the country behind California in 1999. (6) Based on Florida Department of Highway Safety numbers, there were over 4,000 accidents involving motorcycle operators and/or passengers. (7) With the passage of this new legislation, the amount of damages and the severity of injuries will undoubtedly increase. As injuries increase, so does litigation.

In a case involving a motorcycle accident, one of the first issues to be determined is the effect of the plaintiff's nonuse of a helmet, whether one is counsel for the plaintiff or defendant. Is such evidence admissible with regard to liability? Does it go to mitigation of damages? The language of the statute is silent as to the consequence of nonuse. No...