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A child’s failure to wear a helmet while roller skating cannot be used against him in his suit against the driver who struck him, but it can be used as a defense to his parents’ derivative claim, a Rockland County, N.Y., judge has held. Jeffrey Dittmer’s “failure to have worn a helmet, as mandated by statute, cannot be used in any way as a defense or in mitigation of Jeffrey’s damages,” Justice Andrew P. O’Rourke of Rockland County Supreme Court wrote in Dittmer v. Terzian, 7370/02. However, the failure “may properly be considered by the jury in determining whether each parent has the right to recover for Jeffrey’s loss of services.” On Aug. 22, 2002, a leased pickup truck driven by Scott Terzian struck Jeffrey, then age 9, as he skated on Hirsch Drive in West Haverstraw, N.Y. Last rites were administered to Jeffrey in an ambulance. He suffered a brain shearing, the tearing of the nerve cells that comprise the brain, and spent 87 days in the hospital. Though he has had a “tremendous recovery,” according to his attorney, he still suffers from weakness on the left side of his body. Jeffrey’s parents, individually and as his guardians, filed a personal injury action against Terzian and the pickup’s leasing company, Ford Motor Credit Co. The pertinent facts of the case are undisputed, according to Justice O’Rourke, including the fact that Jeffrey was not wearing a helmet. The parties did dispute, however, the application of the Vehicle and Traffic Law, �1238 (5-a) which states, “No person, one or more years of age and less than fourteen years of age, shall skate or glide on inline skates unless such person is wearing a helmet.” The law also says the “failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not … in any way diminish or reduce the damages recoverable in any such action.” Ford Motor Credit acknowledged that Jeffrey’s failure to satisfy the statutory standard could not be used to mitigate damages. Nevertheless, Ford argued, “the statute does not obviate resort to the more onerous common law standard of care based upon reasonableness.” In other words, Jeffrey’s failure to wear a helmet should mitigate damages under common law principles, the statute notwithstanding. LEGISLATIVE INTENT O’Rourke disagreed, saying he found the statute “unmistakably clear in expressing the Legislature’s intention to not penalize in any way in any civil action children injured as a result of in-line skating without a helmet.” He ruled that the law does not provide similar safeguards for Jeffrey’s parents and should not. “They, of course, are the very group entrusted with the care of the tender 1 to 14 year age group that said statute seeks to protect, and they clearly are the only persons situated, not only to purchase helmets for their children but, importantly, to require and oversee their wearing of them,” he wrote. Reasoning that the statute cannot be read as intending to protect parents who failed to comply with the law, and noting that the statute does not refer to parents or their derivative actions, Justice O’Rourke held that “the jury is entitled to hear evidence of Jeffrey’s failure to wear a helmet” and that such failure may be considered in determining whether his parents may recover for loss of services. The court stated that “its examination of the implicated statutes is one essentially of first impression.” The Dittmers, represented by John Rand of the White Plains, N.Y., firm of Clark Gagliardi & Miller, argued that an earlier Appellate Division case with a similar fact pattern should have served as precedent. The plaintiffs in that case sought damages for injuries sustained by their 11-year-old daughter when she was struck by a car while riding her bicycle. In that case, Lamica v. Percore, 273 A.D. 2d 647, Justice Robert S. Rose of the 3rd Department wrote that the statute “bars reduction of plaintiffs’ derivative claim for loss of their child’s services because such claims are within the definition of ‘personal injury.’” Lamica, Rand argued, stands for the notion that “the parents derivative claim is exactly that, a derivative claim. It rises and falls with the child’s claim.” Therefore, the law should apply in the parents’ claim as it does in the child’s, he said. During oral arguments, however, O’Rourke said the Lamica analysis served only as dicta and, as such, was not binding, according to Rand. The financial effect of the loss of the services claim, which the Dittmers have now withdrawn, is “miniscule,” said Rand. Dave Korman, general counsel for Ford Motor Credit, said the court’s decision is “another example of why it is so difficult, virtually impossible, to be in the leasing business in New York.” Jeffrey’s parents allowed him to skate in the middle of the street, Korman said, and Ford is precluded “from even introducing that he was not wearing a helmet, which is the policy of the state of New York.” New York is the only state, he added, to have unlimited liability for leasing companies.

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