Considering a Constitutional Challenge to “The Helmet Law”

WDC Journal Edition: Summer/Fall 2008
By: Doug Ross

I know, I know, most civil defense attorneys see the words “constitutionality,” “due process” and “equal protection” and their eyes glaze over relatively quickly. “Those are arguments for the poor souls who have to do criminal law” seems to be a fairly popular sentiment. But with the proliferation of motorcycles in our state (a trend that does not seem likely to slow anytime soon), and so many riders opting not to wear a helmet,[1] we are sure to continue seeing claims involving the facial injuries, skull fractures and traumatic brain injuries that so frequently accompany motorcycle accidents. With those expectations in mind, the time seems right to consider a challenge to “the helmet law” in Wisconsin.


What is “The Helmet Law”?

“The helmet law” is actually two separate statutory provisions, enacted by the legislature in March 2004.[2] The first, Wisconsin Statute §895.049 states in pertinent part

Notwithstanding §895.045 [comparative negligence], failure by a person who operates or is a passenger on a motorcycle, as defined in § 340.01(32), an all-terrain vehicle, as defined in §340.01(2g), or a snowmobile, as defined in §340.01(58a), on or off a highway, to use protective headgear shall not reduce recovery for injuries or damages by the person or the person’s legal representative in any civil action. This section does not apply to any person required to wear protective headgear under §23.33(3g) or 347.485(1). (emphasis added)

The second statute, §901.053, states that

Evidence of use or nonuse of protective headgear by a person, other than a person required to wear protective headgear under §23.33(3g) or 347.485(1), who operates or is a passenger on a motorcycle, as defined in §340.01(32), an all-terrain vehicle, as defined in §340.01(2g), or a snowmobile, as defined in §340.01(58a), on or off a highway, is not admissible in any civil action for personal injury or property damage. This section does not apply to the introduction of such evidence in a civil action against the manufacturer or producer of the protective headgear arising out of any alleged deficiency or defect in the design or manufacture of the protective headgear or, with respect to such use of protective headgear, in a civil action on the sole issue of whether the protective headgear contributed to the personal injury or property damage incurred by another person. (emphasis added)

The cumulative effect, obviously, is to insulate an injured party from comparative negligence for not wearing a helmet, at the expense of the other negligent party. In effect, the statutes operate to create two separate classes of defendants involved in motorcycle accidents: those “fortunate” enough to cause an accident with a helmeted motorcyclist; and those “unfortunate” enough to cause an accident with an unhelmeted rider. It is the establishment of these two separate classes that opens the door to a constitutional challenge.

Prelude to “The Helmet Law”

To understand the roots of the helmet law, we look to Stehlik v Rhoads.[3] In that case, Stehlik was at a party hosted by the Rhoads’.[4] He had been drinking before and during the party, and at some point during the evening, took the Rhoads’ new ATV out on an unlit trail at night.[5] Although a helmet was available for his use, Stehlik was not wearing one when he rolled the ATV, struck his head against a concrete wall, and suffered serious head injuries.[6] He sued the Rhoads’ for negligence and negligent entrustment.[7]

The Supreme Court reviewed two questions: 1) does application of the “helmet defense” mirror that of the “seatbelt defense” and if so, should the governing principles be modified for the helmet defense; and 2) can the owner of an ATV be liable for failing to require adult users of the ATV to wear a helmet?[8] For purposes of this analysis, it is the first question that has primary bearing.[9] In answering the first question, the court looked to its analysis of the seatbelt defense in Foley v City of West Allis.[10] The court concluded that helmet negligence limits recoverable damages, but does not work to bar recovery under comparative negligence.[11]

The Court further looked to its holding in Bentzler v. Braun,[12] which first recognized the seatbelt defense. In Bentzler the court held that, despite no statutory mandate, common knowledge and statistical evidence demonstrated that seatbelts save lives and reduce injury, and that therefore the use of available seatbelts is contemplated in the common law duty to exercise ordinary care for one’s own personal safety.[13] The court in Stehlik then concluded that the same analysis logically and conceptually applies to the helmet defense.[14] The court summed this rationale up, noting that

[s]ignificantly, the absence of a statute mandating seatbelt use was not decisive in Bentzler; nor is the absence of a statute mandating helmet use by adult ATV riders decisive here. In this context, as in Bentzler, the safety benefits of wearing a helmet while operating or riding a non-enclosed vehicle such as an ATV are a matter of common knowledge, supported by statistical evidence.[15] The court was quick to caution, however, that failure to wear a helmet, like the failure to wear a seatbelt, is not negligence per se; that if there is a failure to wear an available helmet and there is evidence showing a causal relationship between the injuries sustained and the failure to wear a helmet, it is proper and necessary to so instruct the jury.[16]

To this point in the evolution of the helmet defense, things all make sense. It is common knowledge that helmets protect you from injury, and that common knowledge is supported by statistical evidence. The protective properties of a helmet are even more profound than those of seatbelts because, as opposed to a car, motorcycle and ATV riders are in a non-enclosed vehicle. In a motorcycle or ATV accident, a passenger has little option other than to be thrown from the vehicle onto the pavement/ground or surrounding structures. Given those factors, it seems perfectly reasonable that a willful decision not to wear a helmet would result in some reduction in the recovery of an injured party. So, what happened?

The legislature happened. As already noted, in March of 2004, less than two years after the Supreme Court’s decision in Stehlik, the legislature enacted the helmet law. The Senate bill suggests that the sole purpose of the helmet law was to overrule Stehlik.[17]

Anatomy of a Constitutional Challenge

A constitutional challenge is far from a sure thing, obviously. There are numerous hurdles to clear. Statutes are presumed constitutional, and will be held so unless the challenging party shows the statute to be unconstitutional beyond a reasonable doubt.[18] If there is no fundamental right or suspect class implicated, the court applies a “rational basis test” and “considers whether the statute creates a classification that is irrational or arbitrary.[19] Only if a classification rests on grounds wholly irrelevant to the achievement of the state’s objective will there be a violation of equal protection.[20]

Equal protection and due process are guaranteed by the Wisconsin Constitution, and are set out in Article I, Section 1, providing that

All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.

The Wisconsin Supreme Court recently found a statute unconstitutional, striking down the $350,000 cap on non-economic damages in medical malpractice cases, as a violation of the equal protection guarantees.[21] The court in Ferdon v. Wisconsin Patients Compensation Fund concluded there were no fundamental rights or suspect classifications involved, so it applied the “rational basis” test.[22] However, the court muddied the waters in discussing the standard as “rational basis with teeth”.[23] As described by the court, the rational basis with teeth standard “simply requires the court to conduct an inquiry to determine whether the legislation has more than a speculative tendency as the means for furthering a valid legislative purpose.”[24]

The Ferdon court continued its analysis, noting that the legislature is presumed to have acted within its constitutional power despite the fact that their laws result in some inequality, and statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.[25] A statute will be unconstitutional if it is shown to be “patently arbitrary with no rational relationship to a legitimate government interest.”[26]

The court’s first task in evaluating whether a legislative classification rationally advances the legislative objective is to locate or, in the alternative, construct a rationale that might have influenced the legislative determination.[27] Once identified, the court must assume the legislation was passed on that basis, and all facts required to sustain the act are assumed to be conclusively found by the legislature, if those facts can be reasonably conceived in the mind of the court.[28] Deference is given the legislatures chosen means even if the court believes there is a more effective method of achieving the same goal.[29]

Analysis

Because the legislature did not seem to state a specific rationale for the helmet law, other than apparently to overrule Stehlik, it will theoretically be up to the court to construct a rationale that might have influenced the legislative determination. But what legitimate government interest was the legislature preserving? Riding with the wind in your hair is hardly a compelling or legitimate government interest. If it is a matter of freedom and/or preference, then why is seatbelt use mandatory, and motorists who don’t wear a seatbelt are liable for their negligence in so choosing (albeit with a 15% cap on reduction of damages)? What rational basis exists for the legislature to exempt motorcycle or ATV riders from the effects of their negligence and forcing others to pay for it, frequently at extreme costs? From an equitable standpoint, it takes little imagination to envision a scenario where a plaintiff would escape all injury, if not for their failure to wear a helmet.

If the legislature must have rational basis for enacting the law, it would be difficult to defend the helmet law. Viewed in conjunction with the comparative negligence statute and the seatbelt statute, we see that there are very different systems of negligence law for individuals who ride motorcycles or ATVs without helmets, versus persons who drive cars without seatbelts, versus defendants sued by those persons. Simply put, there does not appear to be any defensible state interest in creating these different classifications. To the contrary, the helmet law seems to undercut the state interest in encouraging safe operation of motorcycles and ATVs, and in providing fair and equal treatment for individuals involved in litigation. The state’s rationale in support of mandatory seatbelts and the seatbelt defense demands the same of helmet use. The current state seems to be a perfect example of a statute that is “patently arbitrary with no rational relationship to a legitimate government interest.”[30]

Given the great deference afforded the legislature in reviewing the constitutionality of laws, there are numerous factors that must be considered in looking for the “right” sort of case to warrant a constitutional challenge. Given the importance of the issue, the “ideal” case would involve facts that would highlight the inequity inherent in the helmet law, as well as somewhat defuse the sympathy factor of the injuries to plaintiff. Ideally, such facts would include several of the following non-exhaustive list:

  • a plaintiff who was not wearing a helmet (of course)
  • injuries entirely (or almost entirely) attributable to the failure to wear a helmet (facial injuries, skull fracture, traumatic brain injury)
  • alcohol consumption by the plaintiff (and/or the driver, if the plaintiff is a passenger)
  • relatively “minor” impact
  • “benign” negligence on the part of the defendant, such as:
    • a farm animal finding a hole in a fence and causing an accident before the owner is aware or has opportunity to retrieve the animal
    • accident caused by driver of motorcycle reacting to action of defendant, although no contact between vehicles
  • insurance coverage sufficient to justify the risk of exposure to the insured, given that the injuries/damages in such cases are typically quite substantial

A further complicating factor is the Ferdon case itself. The court has now identified a move away from the traditional five-pronged “rational basis” standard (see endnote 25) in favor of the somewhat nebulous “rational basis with teeth” analysis. Although the court insisted otherwise,[31] this “rational basis with teeth” level of scrutiny seems to effectively create a new level of scrutiny in constitutional analysis.[32]

As the makeup of the court apparently shifts in a more “conservative” direction, there are two options for dealing with this new level of scrutiny. First, is to wait to see if the newly constituted court will retreat from “rational basis with teeth” and return to the traditional “rational basis” standard. If so, a challenge could be pursued once that has been clarified. This is complicated, as the old rational basis standard appears to be more deferential to the statute, although that does not blunt the statute’s profound weaknesses.

The second option is to pursue a challenge under the “rational basis with teeth” analysis. Given that this standard is less deferential to the legislature, it appears that the likelihood of success would be higher. However, there is an element of winning the battle and losing the war in this option. Although such an approach may result in the invalidation of the helmet law, it would also further entrench a judicial concept that would, ideally, go by the wayside in the near future.[33]

Obviously, this article is not meant to be an exhaustive analysis of constitutional law or the arguments a party would advance if a challenge was brought.[34] Rather, the goal was to provide a framework for consideration of a constitutional challenge to the helmet law. As a group, CTCW should perhaps engage in a discussion as to whether we wish to see the court continue with the rational basis with teeth standard, or return to the old rational basis standard. Moreover, regardless of that answer, we should collectively be “on the lookout” for cases which would warrant a constitutional challenge to “the helmet law.”


[1] Thoroughly unscientific, random observations by the author over the last several weeks suggest that roughly 60% of motorcycle riders in the greater north central Wisconsin area do not wear helmets.

[2] 2003 Wisconsin Act 148 [2003 Senate Bill 223] was enacted March 15, 2004, published on March 29, 2004 and went into effect on March 30, 2004.

[3] Stehlik v Rhoads, 253 Wis.2d 477, 645 N.W.2d 889 (2002)

[4] Stehlik at 486

[5] Stehlik at 485-86

[6] Stehlik at 486-487

[7] Stehlik at 483

[8] Stehlik at 482

[9] The court, in answering the second question, determined that liability cannot be imposed on an ATV owner for the failure of an adult to not wear a helmet, based on public policy factors.

[10] Foley v City of West Allis, 113 Wis.2d 475, 335 N.W.2d 824 (1983); four years later, in 1987, the legislature effectively codified Foley, implementing the mandatory seatbelt law, Wis. Stat. §347.48(2m), which includes a 15% cap on the amount that a plaintiff’s damages can be reduced for failure to wear a seatbelt.

[11] Stehlik at 484

[12] 34 Wis.2d 362, 149 N.W.2d 626 (1967)

[13] Bentzler at 385-87

[14] Stehlik at 492

[15] Id. (footnotes omitted)

[16] Stehlik at 494

[17] 2003 Senate Bill 223

[18] Bethke v Lauderdale, 235 Wis.2d 103, 2000 WI App. 107 (Ct. App. at ¶15)

[19] Ferdon at 611-12

[20] Bethke, 235 Wis.2d at 114, ¶15

[21] Ferdon v. Wisconsin Patients Comp Fund, 284 Wis.2d 573, 2005 WI 125 (2005)

[22] Ferdon at 607

[23] Ferdon at 613-14

[24] Ferdon at 614. However, Justice Roggensack in her dissent (page 728) accused the majority of abandoning 30 years of jurisprudence regarding the rational basis test, which held that a classification that is part of a legislative scheme will pass the rational basis test if it meets five criteria:

  1. All classifications must be based on substantial distinctions which make one class really different from another.
  2. The adopted classification must be germane to the purpose of the law.
  3. The classification must not be based upon existing circumstances only.
  4. The law must apply equally to each member of the class.
  5. The characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.

[25] Ferdon at 610, citing McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101 (1961)

[26] Ferdon at 611-12

[27] Ferdon at 612

[28] Ferdon at 612, citing Treiber v. Knoll, 135 Wis.2d 58, 65, 398 N.W.2d 756 (1987) (quoting State ex rel. Carnation Milk Prods. Co. v. Emery, 178 Wis. 147, 189 N.W. 564 (1922)

[29] Ferdon at 612-13

[30] Ferdon at 611-12

[31] “Whether the level of scrutiny is called rational basis, rational basis with teeth, or meaningful rational basis, it is this standard we now apply in this case.” Ferdon at 615.

[32] The “levels” of scrutiny have been defined as “rationality review,” “intermediate review” and “strict scrutiny”. It appears that the court in Ferdon envisions the “rational basis with teeth” level squeezing in between the “rationality review” and the “intermediate review”. The Ferdon court, on page 615, cited Constitutional law scholar Gerald Gunther in explaining that rational basis with teeth “is notthe same as ‘intermediate scrutiny’ “

[Rational basis with teeth] does not take issue with the heightened scrutiny tiers of “strict” and “intermediate” review. Instead, it is solely addressed to the appropriate intensity of review to be exercised when the lowest tier, that of rationality review, is deemed appropriate. What the [rational basis with teeth model] asks is that some teeth be put into that lowest level of scrutiny, that it be applied “with bite,” focusing on means without second-guessing legislative ends. (Evaluating the importance of the ends is characteristic of all higher levels of scrutiny.) In short, [rational basis with teeth raises] slightly the lowest tier of review under the two- or three-tier models; but it does not seek to raise the “mere rationality” level appropriate for run-of-the-mill economic regulation cases all the way up to the level of “intermediate” or of “strict” scrutiny.

Gerald Gunther, Constitutional Law, 605 n. 5 (11th ed. 1985) (emphasis added by the court)

[33] I would strongly encourage reading the dissents authored by Justice Prosser and Justice Roggensack for a better understanding of the Ferdon court’s deviation from the traditional “rational basis” analysis. Although more deferential than the “rational basis with teeth” approach, the prospects for invalidating the helmet law under that standard also have promise, given the glaring lack of a legitimate government interest protected by the statute. However, the purpose of this article is not to demonize the Ferdon decision (which I will leave to others much more capable), but rather to discuss the history of the helmet law and the prospects for a constitutional challenge under the law as it currently stands. Thus, I have attempted to avoid lengthy substantive discussions of the Ferdon court’s development of the “rational basis with teeth” standard.

[34] Obviously, there has been no discussion of federal constitutional principles or a challenge on such a basis. However, it appears that the federal analysis is similar to the state analysis and would have some potential. If a challenge to the constitutionality of the helmet law were to be brought, it would likely be warranted to allege violations of both the state and federal constitutions.