'Seat-belt defense' standard modified for helmets.

• Author: Anderson, Tony

Byline: Tony Anderson

The state Supreme Court has applied the principles of negligence from a failure-to-wear-a-seat-belt case to the case of a man who failed to wear a helmet while driving an ATV.

In so doing, the court indicated that, as with seat-belt negligence, helmet negligence could limit recoverable damages, but could not bar them. However, the court modified the way that jurors should compare a plaintiff's failure to wear a helmet with the defendant's own negligence in the case.

Justice Diane S. Sykes authored the majority court's June 26 decision in Stehlik v. Rhoads, 99-3326. Chief Justice Shirley S. Abrahamson concurred and Justice N. Patrick Crooks dissented.

Sykes wrote, "We conclude that the issue of a plaintiff's negligent failure to wear a safety helmet while operating an ATV is properly governed by the principles applicable to a plaintiff's negligent failure to wear a seat belt established in Foley v. City of West Allis, 113 Wis. 2d 475, 335 N.W.2d 824 (1983)."

Foley separated the consideration of seat-belt negligence from accident negligence. It went on to adopt a "second collision" methodology, which was adapted from successive tort and enhanced injury theories.

In Stehlik the court indicated that "Foley remains the rule" with regard to helmet negligence. However, the court modified the way jurors should compare the negligence of the parties involved.

"[W]e modify Foley's 'second collision' construct, at least to the extent that it calls for an allocation of damages rather than an apportionment of negligence on the issue of a plaintiff's helmet negligence," Sykes wrote. "The jury in a helmet defense case should be asked to compare the plaintiff's helmet negligence as against the total combined negligence of the defendants, rather than treating the comparison as an allocation or division of injuries or damages, as in a successive tort or enhanced injury case."

ATV Accident

The case arose from an ATV accident, which occurred Oct. 1, 1994. Paul and Jill Rhoads had received their new ATV one day prior to the accident. The vehicle included safety instructions regarding the importance of helmets, protective gear, avoiding alcohol before driving, receiving proper instruction in the vehicle's use and the dangers of inclines.

On Oct. 1, the couple held a party at their home, where guests were driving "the ATV after dark, on an unlit trail on a hill, with passengers, without instructions, without wearing available safety helmets, and after serving them alcoholic beverages."

Charles Stehlik, one of the guests, chose to ride the vehicle after drinking alcohol. Stehlik had experience driving a variety of vehicles including over-the-road trucks, stock cars, motorcycles and mopeds. While carrying a 4-year-old passenger, Stehlik rolled the ATV and his head struck a concrete wall causing severe head injuries.

Stehlik sued the Rhoads. Both parties agreed that if Stehlik had been wearing a safety helmet, he would not have sustained serious head injuries. They also agree that the Rhoads owned safety helmets.

The...