Matthew Kenney, 14, was an honors student, and a popular athlete who was active in several sports. David Weaving, 48, had five drunken driving convictions on his record, four of them in a 31-month period between 1996 and 1999. On April 27, 2007, Weaving was speeding down Route 69 in Prospect, Connecticut; the speed limit was 45 MPH, but Weaving attempted to pass another vehicle at 83 MPH. This time, his reckless driving caught up with him, with tragic results. Matthew Kenney and his friends were on their bikes, and according to Weaving, the youths were jumping their bikes off a ramp, when Kenney suddenly appeared in the road, in wet, foggy conditions at dusk. Weaving slammed into Kenney. Though Kenney survived the initial impact, he suffered severe head and internal injuries, broken bones and lacerations. He did not survive beyond the next day.
Weaving was subsequently convicted of manslaughter, and is currently serving a 10-year prison sentence. Kenney’s parents are seeking permission to file suit against the Connecticut Department of Motor Vehicles. The Kenneys allege that under state law, Weaving’s multiple DUI convictions should have resulted in his license being permanently revoked in 1999. The Kenneys have already filed suit against Weaving, seeking $15,000 in damages. It was Weaving’s response to the Kenneys lawsuit that brought national attention to the case. Alleging that he has “endured ‘great mental and emotional pain and suffering,’ wrongful conviction and imprisonment, and the loss of his ‘capacity to carry on in life’s activities,’” Weaving has counter-sued the Kenneys for “contributory negligence,” claiming more than $15,000 in damages.
Matthew Kenney, he alleges, was not wearing a helmet, as required by Connecticut law, and according to Weaving, that makes Kenney’s parents negligent, and he alleges, responsible for Matthew Kenney’s death.
Naturally, Weaving’s inability to behave responsibly before Matthew’s death, and to accept personal responsibility after Matthew’s death, left people appalled. But in fact, counter-suits are a routine response to lawsuits, because they serve as a means to transfer some of the risk of a lawsuit from the defendant back to the plaintiff, so it’s not particularly shocking that Weaving would go on the counter-offensive, alleging parental negligence in this case.
That’s not the same thing as saying Weaving will win on his counter-suit. For one thing, although Weaving denies that he was speeding, his speed has already been established as a fact in a court of law, and based on that fact of his reckless speed, and Matthew Kenney’s death, he has been convicted of manslaughter. Attempting to re-litigate that fact in civil court will likely only work against Weaving.
Still, even though it’s been established that Weaving was speeding, he could attempt to prove that Kenney’s parents also bear some responsibility for their son’s death, because Matthew Kenney was not wearing a helmet when Weaving hit him. I don’t think he’s going to get very far with that argument, either.
True, in Connecticut, helmets are required for riders under the age of 16, and police may verbally “warn” parents that their child must comply with the law if their child is riding without a helmet. However, Connecticut law is quite explicit on this point: “Failure to wear protective headgear as required by this subsection shall not be considered to be contributory negligence on the part of the parent or the child nor shall such failure be admissible in any civil action.” In short, the law prohibits Weaving from claiming that Kenney’s failure to wear a helmet contributed to his death.
Nevertheless, even though it’s not allowed under Connecticut law, his argument that the failure to wear a helmet contributed to Matthew’s death is what caught my attention. To prove that argument, Weaving would have to present evidence that a helmet would have prevented the fatal injury that Matthew suffered to his brain. On the surface, this seems like it might be an easy argument—Matthew was not wearing a helmet, Matthew was hit by a car and suffered a severe head injury, and was declared brain dead the next day. But even if he could make this argument—and under Connecticut law, he can’t—he would have to prove that but for the lack of a helmet, Matthew Kenney would be alive today. To do that, Weaving would have to prove that a helmet would have saved Kenney’s life, even though Weaving hit Kenney at more than 80 miles an hour.
And that is a lost cause, even if Weaving had the resources (and he doesn’t) to hire an expert witness to make that laughable assertion. Even the most ardent proponents of helmet use acknowledge the fact that bicycle helmets are only designed and tested to protect your head in a low-speed impact—typically, a fall of only a few feet, at no more than about 14 miles per hour. That is the standard required by the Consumer Product Safety Commission. Helmet manufacturers could make helmets that withstand greater impacts, but as they laconically note, there are trade-offs. Would you want to wear a motorcycle helmet while riding your bike? Because that increased weight and heat retention is what it would take to manufacture a bike helmet that would withstand high-speed impacts. For that matter, why reinvent the wheel? Helmet manufacturers could just begin marketing motorcycle helmets as “bike helmets”—but as the bicycle helmet manufacturers ask, who would wear one?
The fact is, many cyclists wear helmets because they perceive that any potential for increased discomfort is outweighed by the safety benefits gained. But if safety standards only require that helmets withstand a low-speed impact, are there really safety benefits to wearing a helmet? Perhaps surprisingly, the answer is a qualified yes. In a low-speed fall from your bike, a bicycle helmet may protect you from sustaining a head injury, and considering the fact that the majority of bicycle accidents are solo crashes, helmet impact standards do address the types of impacts associated with the majority of bicycle accidents. From that perspective, there is some safety benefit to be derived from wearing a bicycle helmet.
The problem, however, is that nobody straps on a helmet because they’re afraid that they might have a low-speed solo fall from their bike. Nobody driving by a cyclist who is riding sans headgear yells “wear a helmet” because they’re afraid that cyclist might have a low-speed solo crash. Nobody passes mandatory helmet laws because they want to protect cyclists from themselves. No, the reason helmet use is considered de rigeur is because people believe that a helmet will protect the cyclist from the head injuries associated with the high-speed impact of a collision with an automobile.
This is why we see police and media reports noting whether a cyclist who was injured or killed in a collision with an automobile was wearing a helmet. We see this even if the cyclist’s injuries were not head injuries; the media (and their audience) still want to know “Was the cyclist wearing a helmet?” They might as well be asking, “Was the cyclist wearing a talisman?” And if you think about it, that is exactly what they are asking. It’s exactly what insurance company attorneys want to ask in court. It’s exactly the issue David Weaving wants to bring into court, to absolve himself of any liability for his own reckless driving—“But your honor, the cyclist was not wearing a magic talisman to protect against my reckless driving!”
It’s this kind of magical thinking that the Connecticut Legislature had the foresight to address in their mandatory helmet law, with the proviso that the failure to wear the mandatory helmet “shall not” be considered to be contributory negligence on the part of the cyclist. Yes, the legislators decided, we want to encourage children to wear helmets because children in particular are subject to low-speed solo crashes. But no, the legislators emphasized, we do not want reckless drivers shifting the blame for the injuries they cause to the children they’ve injured, even if that child is not wearing the mandatory helmet.
Of course, when police and media ask, “was the cyclist wearing a helmet?” and when passing busybodies yell “wear a helmet” at total strangers, helmet use for cyclists of all ages is treated as being virtually mandatory, in practice, if not in law. And that sense that helmet use is mandatory, or should be, inevitably leads to calls for mandatory helmet laws—something I will be discussing in my next Road Rights column.
Research and drafting by Rick Bernardi, J.D.
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