Posted on Sep 01, 2009
Posted 2/11/2008

In 2002, the Wisconsin Supreme Court ruled that non-use of a helmet could be used as a defense for the purpose of reducing the amount of damages allowed to an injured person who was riding an open air vehicle, such as an ATV or motorcycle.
Attorney Michael Hupy, who represents many injured motorcyclists, worked with ABATE of Wisconsin to draft language of a bill to remedy the situation. As Dave Dwyer, ABATE of Wisconsin Legislative Director put it, the Supreme Court in effect created a de facto helmet law. The case in reference was Stehlik v Rhoads, 2002 WI 73, 253 Wis.2d 477, 645 N.W.2d 889
In Wisconsin, there is generally no requirement for people over 21 to wear a helmet. What the bill Attorney Hupy and ABATE helped write accomplished was that non-use of a helmet could not be used as a contributory negligence argument to reduce recovery for injuries.
The first challenge to the law that we know of came on November 27, 2007. This test was heard in the Court of Appeals of Wisconsin, 2007 WI App 264, Aaron R. Hardy v Gary L. Hoefferle Taylor. In Hardy v. Hoefferle, the question of contributory negligence was brought against Aaron Hardy, a minor who was seriously injured in an ATV accident. The defendant-appellant, Gary Hoefferle, claimed that Aaron's parents were negligent for not requiring him to wear a helmet, stating he was required to do so under s.23.33 (3g), because he was a minor.
The Appellate court ruled that the non-use of a helmet could not be used as a defense, even though Aaron was a minor, because he was operating the ATV on land under the management and control of an immediate family member (his mother Tonna owned the land). That exception released him from the statutory mandate in s.23.33 (3g). He was also released from the requirement of taking an ATV safety course and being certified, once again because he was on private land owned by a family member.
This view was reinforced by s. 901.053, an evidence statute, which says if a person is not statutorily required to wear a helmet, 901.053 prohibits evidence of that fact from being introduced at trial, with certain exceptions.
Thus, in its first test, of the legislation that was powered through the legislature in Wisconsin with the help of ABATE and Attorney Hupy, stood up. Attorney Hupy not only helped with drafting the language of the bill, he also testified at a public hearing before a Senate Committee and an Assembly Committee and lobbied in support of the bill.
Although an ATV case, with a minor involved, it only strengthens the fact that motorcyclists will not fall victim to insurance companies looking to reduce payments to an injured rider because of the negligent behavior of one of their insured.
Hupy and Abraham, has successfully represented well over 1,000 riders in motorcycle accidents. We have offices throughout Wisconsin, Illinois and Iowa and have collected multi-million dollar settlements as a result of motorcycle accidents in both Wisconsin, Illinois and Iowa.