Roetker v. State Farm Mutual Automobile Insurance Company

Filing 35

MINUTE ORDER granting 31 Plaintiff's First Motion in Limine (Non-Use of Bicycle Helmet), by Magistrate Judge Michael J. Watanabe on 9/2/2015.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-CV-00326-MJW
LAYNE ROETKER,
Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois
corporation,
Defendant.

MINUTE ORDER

It is hereby ORDERED that Plaintiff’s First Motion in Limine (Non-Use of Bicycle
Helmet) (Docket No. 31) is GRANTED for the following reasons.
This is an insurance dispute. The underlying liability arose when Plaintiff was
struck by an uninsured motorist while riding her bicycle to school. Plaintiff was 14 years
old at the time, and suffered severe injuries. At the time of the accident, Plaintiff was
not wearing a bicycle helmet. This motion in limine seeks to bar Defendant from
introducing evidence of Plaintiff’s failure to wear a helmet for any purpose.
As support for the motion, Plaintiff relies on Dare v. Sobule, 674 P.2d 960 (Colo.
1984). There, after the Colorado legislature repealed a statute requiring motorcyclists
to wear helmets, the Colorado Supreme Court held that motorcyclists also have no
common-law duty to wear helmets and that the failure to wear a protective helmet
cannot be introduced to show contributory or comparative negligence by the plaintiff,
nor to mitigate damages. Id. at 963. While the historical background of a repealed
statute is not present here, in the context of bicycles, Plaintiff argues that the following
reasoning from Dare applies just the same:
First, a defendant should not diminish the consequences of his
negligence by the failure of the injured party to anticipate defendant's
negligence in causing the accident itself. Second, a defense premised on
an injured party's failure to wear a protective helmet would result in a
windfall to tortfeasors who pay only partially for the harm their negligence
caused. Third, allowing the [comparative-negligence] defense would lead
to a veritable battle of experts as to what injuries would have or have not
been avoided had the plaintiff been wearing a helmet.

Id. (internal citations omitted).
Defendant argues that there is no reason to extend Dare to the context of
motorcycles. The Court disagrees. Dare is not so easily limited to motorcycles. To
begin with, Dare twice stated its holding as a matter of “protective helmets” in the
abstract. See, e.g., id. (“We hold, therefore, that, under the Colorado Comparative
Negligence Act, evidence of plaintiff’s failure to wear a protective helmet is inadmissible
to show negligence on the part of the injured party or to mitigate damages.”). Although
the case arose in the context of a motorcycle accident, Dare did not expressly limit itself
to that context. Further, for support, Dare relied on cases discussing seat belts––thus
showing that its reasoning was not specific to motorcycles only. (Id. (citing Fischer v.
Moore, 517 P.2d 458 (1973), among others).
Defendant further argues that the Tenth Circuit has expressly limited Dare to seat
belts and motorcycle helmets, citing Dillon Cos. v. Hussman Corp., 163 F. App’x 749,
753-55 (10th Cir. 2006). But it is Defendant that is reading precedents too broadly, not
Plaintiff. Dillon Companies had to do with a grocery store’s failure to protect against the
risk of fire by installing draft stops, sprinklers, or noncombustible insulation, in violation
of building code standards, id. at 753––a factual context so far removed the case at
hand as to be nearly meaningless.
Defendant further argues that a bicyclist’s comparative negligence is generally
admissible, citing Whitney v. Anderson, 784 P.2d 830 (Colo. App. 1989). And this is
true––but Whitney involved negligent conduct not related to protective gear like seat
belts or helmets. There, the bicyclist could have come to a complete stop before the
collision, thus avoiding injury, but failed to do so because he was not watching where he
was going and did not see the defendant’s vehicle. Id. at 833. Here, by analogy,
Defendant will be able to introduce any otherwise admissible evidence that Plaintiff was
operating her bicycle negligently. But Whitney does nothing to undermine Dare’s
holding that failing to wear a protective helmet constitutes negligent conduct. The same
error applies to Defendant’s citation to Reid v. Berkowitz, 315 P.3d 185 (Colo. App.
2013), which involved negligent conduct unrelated to a vehicle’s protective
gear––specifically, it involved a construction worker’s failure to use a flashlight while
moving about a dimly-lit construction site. Id. at 196. If Defendant has evidence that
Plaintiff engaged in negligent conduct creating a risk to herself, over and above the risk
always inherent in riding a bicycle, Whitney and Reid establish that such negligence is
admissible. But failing to wear a helmet is, as a matter of law, not such negligence.
Finally, Defendant argues that the evidence should be admissible to show failure
to mitigate, to negate causation, or to impeach, even if not to show comparative
negligence. The Court disagrees: Defendant has not proffered any explanation as to
how such a theory amounts to anything more than imposing on Plaintiff the same duty
to wear a helmet that the Colorado Supreme Court declined to impose in Dare.
Date: September 2, 2015