|About the author:
Ross D. Petty received
his B.A. and M.B.A. from the University of Rochester, his J.D. from the University of
Michigan, and an M.P.A. from Harvard University. At the time of first publication of this
article, he was Assistant Professor of Business Law at Babson College. (Updated
short bio on Babson College Web site.)
He wishes to thank John Williams (editor of the journal Bicycle Forum) for comments on earlier drafts
of this article.
- The term "hardshell bicycle helmet" includes the recently
developed "no shell" helmets that are constructed of expanded polystyrene as
well as similar helmets that also include a hard plastic shell. Both pass helmet safety
standards and can be contrasted with "leather hairnets" that offer virtually no
impact protection. See Bike Helmets: Unused Lifesavers, Consumer Reports
348 (May 1990); Swart, Hard Facts About Bicycle Helmets, 1 Cycling Science 14
(Dec. 1988); D'Ambrosio, The Shell Game, 14 BikeReport 13 (Jun. 1988) and sources
cited at notes 58-60, infra. While a question has been raised concerning whether
"no shell" helmets momentarily adhere to the ground on impact thereby increasing
the likelihood of neck or spinal injuries, such helmets are too new to have a significant
effect on the data presented here. See V. HODGSON, IMPACT, SKID, AND RETENTION
TESTS ON A REPRESENTATIVE GROUP OF BICYCLE HELMETS TO DETERMINE THEIR HEAD-NECK PROTECTION
CHARACTERISTICS (1990) (finding increased probability of neck injury from no shell helmets
over hardshells at low angle skids), and Martin, Are Foam Only Helmets Safe?, 30
Bicycling 28-29 (Feb. 1989). But see Zahradnik, Helmet Buyer's Guide, 30
Bicycling 160-61 (May 1989) (Bell helmets tested foam-only helmets on simulated road
surfaces and found no appreciable differences with hardshell helmets).
- There are many other, less intrusive, efforts taken by the Federal
Government to promote bicycle safety. These include co-sponsoring conferences, preparing
studies and funding projects at the state and local level. See, e.g., Baldwin, Federal
Bicycle Programs and Projects, 1 Bicycle Forum 30 (Spr. 1978), and Baldwin, Federal
Funds for Bicycles, 2 Bicycle Forum 31 (Fall 1978). Even the Federal Trade Commission
has contributed to bicycle safety through its acceptance of a consent agreement with a
bicycle manufacturer that agreed to cease showing children riding in an unsafe manner in
its advertising, and to produce two bicycle safety messages and distribute them to
specified television stations across the country. See AMF, Inc., 95 F.T.C. 310
- PRESIDENT'S COMMISSION ON PRODUCT SAFETY, FINAL REPORT 1 (1970).
More recently, the CPSC has estimated that consumer products are associated with 32
million injuries and 28,000 deaths annually, costing an estimated $10 billion in emergency
room treatment alone. CONSUMER PRODUCT SAFETY COMMISSION, ANNUAL REPORT FOR FISCAL YEAR
- 36 CONG. Q. 389 (1978). The first Chairman of the CPSC, Richard O.
Simpson, testified in 1976 that the "standards-preventable" portion of product
associated injuries was between 15 and 25%. Federal Regulation and Regulatory Reform:
Hearings Before The Subcomm. On Oversight And Investigations Of The House Comm. On
Interstate And Foreign Commerce, 94th Cong., 2d Sess. 4 (1976).
- Oi, The Economics of Product Safety, 4 BELL J. ECON. 4
- Id. See also Viscusi, Toward a Diminished Role for Tort
Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and
Safety, 6 YALE J. REG. 65, 74-75 (1989).
- Lower, Averyt and Greenberg, On the Safe Track: Deaths and
Injuries Before and After The Consumer Product Safety Commission 1, 4 (unpublished
report of the Consumer Federation of America, Sept. 15, 1983).
- See EDITORIAL RESEARCH REPORTS ON CONSUMER PROTECTIONS
GAINS AND SETBACKS 8 (Feb. 17, 1978).
- Viscusi, Consumer Behavior and the Safety Effects of Product
Safety Regulation, 28 J. L. & ECON. 527, 531-34 (1985); W. Vlscusi, REGULATING
CONSUMER PRODUCT SAFETY 71-73 (1984).
- Zick, Mayer & Snow, Does the U.S. Consumer Product Safety
Commission Make a Difference? An Assessment of Its First Decade, 6 J. CONS. POL'Y.
25, 27-28 (1986).
- Id. at 30-32.
- Id. at 34.
- Id. at 34-38. They also conclude that by failing to control
for other variables, the Consumer Federation study overestimated the effect of the CPSC by
155%. Id. at 36.
- Viscusi, supra note 9, at 532.
- Zick et al., supra note 10, at 29 n.1, and 33.
- See, e.g., P. KENNEDY, A GUIDE TO ECONOMETRICS 150-52
- Viscusi, supra note 9, at 533.
- Zick et al., supra note 10, at 31.
- W. VISCUSI, supra note 9, at 71-101. For other critical
analyses of CPSC rules, see also Kafoglis, Matchbook Safety, in
BENEFIT-COST ANALYSES OF SOCIAL REGULATION 75 (1. Miller & B. Yandle eds. 1979);
Lenard, Lawn Mower Safety, in id.; and Linneman, Effects of Consumer
Safety Standards: The 1973 Mattress Flammability Standard, 23 J. L. & ECON. 461
- See, e.g., 1. CLAYBROOK ET AL., RETREAT FROM SAFETY 58-70
(1984); M.GREEN & N. WAITZMAN, BUSINESS WAR ON THE LAW: AN ANALYSIS OF THE BENEFITS OF
FEDERAL HEALTH/SAFETY ENFORCEMENT 156-67 (1981). These analyses appear to be largely based
on the CPSC's own estimates of its rules' benefits and costs. Such estimates have often
been criticized as biased. See sources supra note 19.
- 15 U.S.C. § 2056(b) (1982). For general criticism see
Adler, From "Model Agency" to Basket Case - Can the Consumer Product Safety
Commission Be Redeemed? 41 ADMIN. L. REV. 61, 92-106 (1989). For criticism for
reliance on specific voluntary standards including those for all terrain vehicles,
cigarette lighters, bunk beds, DEHP, swimming pool covers, and baby pacifiers, seeM.
FISE, THE CPSC: GUIDING OR HIDING FROM PRODUCT SAFETY (Consumer Federation of America,
- Linneman, supra note 19, at 474-79. 23
- U.S. CONSUMER PRODUCT SAFETY COMMISSION, ANNUAL REPORT 22 (1982).
- U.S. CONSUMER PRODUCT SAFETY COMMISSION, 1990 PRIORITY PROJECT
RECOMMENDATIONS, section on FY 1990 PRIORITY PROJECTS - Conducting A Bicycle Injury And
Exposure Survey (May 9, 1988), cited in, PETITION OF THE CONSUMER FEDERATION OF AMERICA ET
AL., TO ESTABLISH A MANDATORY SAFETY STANDARD FOR ADULT AND CHILD BICYCLE HELMETS 7-8 (May
15, 1989) ($2 million for each death, $2.3 billion for emergency room treated injuries,
and $2.5 billion for other medically treated injuries).
- Id. Kenneth Cross estimates that because NEISS does not
include student health care facilities, it may underestimate the total number of serious
bicycle-associated injuries by as much as 27%. K. CROSS, BICYCLE-SAFETY EDUCATION - FACTS
AND ISSUES 24 (1978).
Those accidents that result in only minor injuries are not reported to medical facilities
or to the police or insurance authorities. Thus, the vast majority of bicycle accidents
are likely not to be reported at all. A recent study by the Madison, Wisconsin Traffic
Engineering Department found that 2,800 adult bicyclists were involved in accidents in
1985. Only 300 or so of those accidents were reported to the police. 12 BikeReport 4
(Oct./Nov. 1986). Similarly, a North Carolina study of 648 accidents reported to hospital
emergency rooms in 1985 and 1986 showed that only 10% were reported to the police. J.
STUTTS ET AL., BICYCLE ACCIDENTS: AN EXAMINATION OF HOSPITAL EMERGENCY ROOM REPORTS AND
COMPARISON WITH POLICE ACCIDENT DATA 10 (Univ. N. Carolina Highway Safety Research Center,
- U.S. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, THE NATIONAL
ACCIDENT SAMPLING SYSTEM 42-43 (1986) [hereinafter NASS]. Motor vehicle accidents tend to
be more severe than non-motor vehicle accidents. See Flora & Abbott, National
Trends in Bicycle Accidents, 11 J. SAFETY RES. 20, 26 (1979)(7% of the severe
accidents involve motor vehicles compared to 3% in the total sample).
- NATIONAL SAFETY COUNCIL ACCIDENT FACTS 73 (1988). Pedalcycles
include sidewalk bicycles and tricycles which are not included in the NHTSA figures.
- J. FORESTER, BICYCLE TRANSPORTATION 84 (1983). STUTTS ET AL., supra
note 25, at 3, review reported hospital emergency room studies from around the country and
indicate that the proportion of bicycle related injuries occurring from motor vehicle
collisions ranges from 13-50%. Australian figures show 70-80% of bicycle crashes do not
involve motor vehicles. Boughton & Broadbent, Bicycle Safety Current Knowledge
in BIKESAFE 86 CONFERENCE PROCEEDINGS 15, 29 (Fed. Dept. of Transportation ed. 1987).
- K. CROSS, supra note 25, at 22 and Burden, Bicycle
Accident Facts, 1 Bicycle Forum 12, 13 (Spr. 1978).
- In contrast to the cause of accidents, most bicycle injuries are
caused by impact with the ground. Even in bicycle-motor vehicle accidents, 60% of the most
severe bicyclist injuries are caused by impact with the ground. NASS, supra note
26, at 42.
- J. FORESTER, supra note 28 , at 84.
- Kiburz et al., Bicycle Accidents and Injuries Among Adult
Cyclists, 14 AM. J. SPORTS MED. 416 (1986), reported in 28 Bicycling 22-3 (Apr.
1987). See also Flora & Abbott, supra note 26, at 25 (Of 581 serious
injury cases investigated by the CPSC, 51% were primarily caused by operator error).
- P. HILL, BICYCLE LAW AND PRACTICE §§ 1.4 & 1.5 (1986). Cf.
DeLong, Bicycle Stability, 13 Bicycling 12 (May 1972) and Jones, The
Stability of the Bicycle, Physics Today 34 (Apr. 1970).
- Interestingly, there is a negative correlation between the annual
number of NEISS bicycle injuries and the annual number of NHTSA bicycle related deaths.
The Spearman correlation coefficient is -0.66 and is significant at the 98% confidence
level. One possible explanation for this relationship is the inaccuracy of NEISS or of
- U.S. NATIONAL HIGHWAY SAFETY TRAFFIC ADMINISTRATION, THE FATAL
ACCIDENT REPORTING SYSTEM Ch. 8 at 9 (1987) [hereinafter FARS].
- NATIONAL SAFETY COUNCIL, supra note 27, at 73 (1988).
- U.S. DEPT. OF HEALTH AND HUMAN SERVICES, VITAL STATISTICS OF THE
UNITED STATES, VOL. II, MORTALITY, PART A at 198 (1986) (10 pedestrians and 8 unspecified
people were also killed in pedalcycle accidents not involving motor vehicles).
- Cf. K. CROSS, supra note 25, at 21 (82%). In Australia, 87%
of bicyclist fatalities involve motor vehicle collisions. Boughton & Broadbent, supra
note 28, at 24.
- Fife et al., Fatal Injuries to Bicyclists: The Experience of
Dade County, Florida, 23 J. TRAUMA 745, 746 (1983). None of the bicyclists were
wearing helmets, and all were injured from a collision with a car.
- Guichon & Myles, Bicycle Injuries: One Year Sample in
Calgary, 15 J. TRAUMA 504-6 (1975), and N. GILLIES, HELMETS FOR USE BY BICYCLE RIDERS
5 (Traffic Accident Research Unit, Department of Motor Transport, New South Wales March
1980). According to the NHTSA, 70% of all motorcycle fatalities are caused by head
injuries. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, STATE AND COMMUNITY PROGRAM AREA
REPORT, MOTORCYCLE SAFETY 1984-85 at 3 (1985), When the requirement that states enact
mandatory motorcycle helmet use laws was repealed in 1976, motorcycle fatalities increased
48% in four years - from 3,312 in 1976 to 5,144 in 1980. NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION, A REPORT TO CONGRESS ON THE EFFECT OF MOTORCYCLE USE LAW REPEAL - A CASE
FOR HELMET USE at IV-2 (1980).
- Worrell, Head Injuries in Pedal Cyclists: How Much Protection
Will Help? 78 INJURY 56 (1987).
- Data is derived primarily from NATIONAL SAFETY COUNCIL, supra
note 27, at 83. That for smoking and mountaineering are from Morrall, A Review of the
Record, 10 REGULATION 25-27 (1986). Data for bicycling and all terrain vehicles are
derived from other sources. See supra notes 24 and 35; infra
notes 79 and 109
- 28 Bicycling 23 (Apr. 1987). This estimate is consistent with data
in Table 1 under the assumption that it represents only 10% of all injuries.
- 1 Bicycle Forum 45 (Spr. 1978).
- Most of this regulation became effective on May 11, 1976. Four
subsections became effective on November 13, 1976. On June 1, 1977, a federal court
remanded four provisions for reconsideration, and those four provisions were subsequently
C.F.R. § 1512 (1985).
- PRESIDENT'S COMMISSION ON PRODUCT SAFETY, supra note 3, at
- Bicycles, Proposed Classification as Banned Hazardous Substance, 38
Fed. Reg. 12,300 (1973) (to be codified at 21 C.F.R. §§ 191.9a and 191c.).
- BUREAU OF PRODUCT SAFETY, STAFF ANALYSIS OF BICYCLE ACCIDENTS AND
- See Bicycles, Establishment of Safety Standard and Proposed
Labeling Requirements, 39 Fed. Reg. 26,100 (1974); Bicycle Banning and Safety Regulations,
40 Fed. Reg. 25,480 (1975); and 40 Fed. Reg. 52,815 (1975), respectively (all to be
codified at 16 C.F.R. §§ 1512 and 1500.18 (a) (12)).
- Forester v. C.P.S.C., 559 F.2d 774 (D. C. Cir. 1977). The other
parties who had filed for appeal of the CPSC's initial promulgation voluntarily dismissed
their suits; 559 F.2d at 781.
- Id. at 788.
- Bicycles Revised Safety Standards, 43 Fed. Reg. 60,034 (1978) (to be
codified at 16 C.F.R. § 1512).
- PRESIDENT'S COMMISSION ON PRODUCT SAFETY, supra note 3, at
18-20. Selbst et al. found head and neck trauma to be the primary injury in 31% of
bicycling injured children treated by The Children's Hospital of Philadelphia in the
summer of 1983. Selbst et al., Bicycle-Related Injuries, 141 AM. J. DISEASES
CHILDREN 140, 141 (1987). Similarly, 67% of those hospitalized in Calgary, Canada with
bicycling related injuries had head injuries. Guichon & Myles, supra note 40.
- The CPSC's publication directed at child bicyclists, SPROCKETMAN
COMICS, does mention the importance of wearing a helmet on page 25, but the title
character does not even have one integrated into his superhero costume.
- See P. HILL, supra note 33, at 11 and 10 Pro Bike
News 1 (Jul. 1990), respectively.
- CAL. VEH. CODE § 21204 (West 1987). Florida, Massachusetts, New
Jersey and New York legislatures reportedly are considering similar bills. The New York
Assembly also is considering a mandatory helmet use law for all bicyclists. 9 Pro Bike
News 1, 2 (May 1989).
A recent study of 54 NEISS reported injuries to children riding in bicycle mounted child
seats found that 65% of all reported injuries were to the head and face. 27% of the head
injuries were serious. The study recommended that children in such carriers wear helmets.
Sargent et al., Bicycle-Mounted Child Seats, 142 AM. J. DISEASES CHILDHOOD 765
- See, e.g., Rodale, Helmet Progress, 20 Bicycling
72 (Jan. 1979) and Swart, Helmet User's Test, 20 Bicycling 61 (Jun. 1979).
- For a detailed discussion of helmet performance standards and
performance testing, see Minton, A Head of the Game, 1 Bicycle Rider 110
(1985) and the follow-up article, Howels, Helmet Testing -- Can We Live With These
Standards? 2 Bicycle Rider 50 (1986).
- Martin, Crash Course, 29 Bicycling 72 (Jun. 1988).
- NATIONAL ADOLESCENT STUDENT HEALTH SURVEY, INJURY PREVENTION FACTSHEET
- 5 Bicycle Forum 24 (Spr. 1987).
- 8 Pro Bike News 3 (Jun. 1988).
- 7 Pro Bike News 3 (Mar. 1987).
- The Oregon study found that 6% of child recreational bicyclists, 29%
of child commuter bicyclists and 69% of child touring bicyclists wore helmets. The
comparable figures for adults were 17%, 39%, and 72%, respectively. Unpublished charts
from the OREGON DEPARTMENT OF TRANSPORTATION HIGHWAY DIVISION, Dick Unrein, Bicycle
- Weiss, Bicycle Helmet Use by Children, 77 PEDIATRICS 677
(1986). In contrast to their low usage rate, 65% of more than 135,000 children under the
age of 17 who were surveyed by Cheerios, favored making bicycle helmet use mandatory for
their age group. 30 Bicycling 34 (Jun. 1989).
- 12 BikeReport 4 (Oct./Nov. 1986) and Williams, Promoting Helmets
in Madison, 17 Bicycle Forum 12, 14 (Fall 1987).
- Wasserman et al., Bicyclists, Helmets and Head Injuries: A
Rider-Based Study of Helmet Use and Effectiveness, 78 AM. J. PUB. HEALTH 1220 (1988)
(Of 21 bicyclists who reported falling and striking their heads, the 8 helmeted riders
reported no head injury whereas 7 of the 13 unhelmeted riders reported such injuries).
- Private conversation with Debbie Kensworth of the CPSC, on Feb. 16,
1988, concerning CPSC's in-depth study of bicycle accidents, published in August, 1986.
- Survey reported in Wilson, Bicyclists in Washington State: A
Population at Risk 13 (Unpublished paper available from the Bicycle Helmet Safety
Institute, Arlington, VA, March, 1987).
- Selbst et al., supra note 54.
- Watts et al., Survey of Bicycling Accidents in Boulder, Colorado,
14 PHYSICIAN SPORTS MED. 99, 100 (1986).
- STUTTS, ET AL., supra note 25, at 14.
- Letter from Mark E. Williams, Vice President/General Manager Bicycle
Division, Bell Helmets, Inc. to the author, concerning bicycle helmet sales (Apr. 8,
Estimating Safety Effects
- A 1976 survey in the Federal Republic of Germany found 15.3
accidents per million bicycle trips, 6.6 accidents per million bicycle kilometers and 62.0
accidents per million hours travelled by bicycle. The comparable figures for automobiles
were 11.6, 0.7 and 29.4, respectively. Brog & Kuffner, Relationship of Accident
Frequency to Travel Exposure, in TRANSPORTATION RESEARCH BOARD No. 808 at 55 (1981).
A recent Australian study calculated that regular bicycle users (ride at least once per
week) in that country had 2.7-5.4 fatalities per 100 million kilometers, 2-4
hospitalizations per million kilometers, 55-110 fatalities per 100 million hours and 40-80
hospitalizations per million hours. The corresponding calculations for automobiles are 2,
0.8, 80, and 30, respectively. Mathieson, Gaps in Current Knowledge, in BIKESAFE
86 CONFERENCE PROCEEDINGS 55, 58 (Dept. Trans. ed. 1987).
- W. VISCUSI, supra note 9, at 84-5 and Viscusi, supra
note 9, at 552. Viscusi's analysis contained an admitted critical limitation. He only
examined data through 1981 but recognized that bicycles have an average operating life of
at least seven years. His analysis therefore did not encompass a sufficiently long period
of time to show whether the rule had any effect on the number of reported injuries. As
expected, he failed to find any trend that might indicate the CPSC standard reduced the
number of bicycle-related injuries reported to NEISS.
- See NATIONAL SAFETY COUNCIL, supra note 27, at 63.
- Rodgers, Reducing Bicycle Accidents: A Reevaluation of the
Impacts of the CPSC Bicycle Standard and Helmet Use, 11 J. PROD. LIAB. 307, 311-2
- Rodgers adopts users per bicycle in use as his control for intensity
of use. Id. at 311. He does not explain why such a measure in appropriate.
- The number of bicyclists were estimated by the author based on
surveys performed by the Sporting Goods Dealer magazine, the National Sporting Goods
Association, the A.C. Nielsen Company, the Department of Interior and the Gallup Company,
as well as estimates by the Bicycle Federation. For much of this data in tabular form, see
Petty, The Consumer Product Safety Commission's Promulgation of a Bicycle Safety
Standard, 10 J. PROD. LIAB. 25, 42 (1987).
- See infra notes 114-6 and accompanying text.
- Rodgers, supra note 79, at 311-4.
- Id. Rodgers also uses a linear trend variable to
"capture all omitted factors that affect the risk of injury smoothly over time."
Id. at 312. Since this variable was significant for fatalities and head injuries,
it was tried here, but never achieved significance. It is difficult to imagine any such
factors that would not be included in the pedestrian variable.
- Viscusi, supra note 9, at 532. To insure the accuracy of
this assumption, lagged variables were included experimentally in both equations. In each
case the lagged variables were not statistically significant and had negative
- a is the intercept coefficient, and b1 through b4
are coefficients of the independent variables.
IR is the injury rate per thousand bicyclists using NEISS data -- NEISS data was obtained
from the CPSC on computer printouts for each calendar year. For more information on NEISS,
see supra note 25.
FR is the fatality rate per million bicyclists based on FARS data -- published annually by
the NHTSA -- see, e.g., supra note 35.
PH is the proportion of head injuries reported to NEISS. I am indebted to Rodgers for
catching arithmetic errors in my earlier study; see Rodgers, supra note
79, at 309. Rodgers' corrected figures are used here.
CPSC is one of four dummy variables assuming a seven or ten year bicycle life and a simple
or complex life cycle model.
HEL is the proportion of bicyclists who own helmets.
POP is the proportion of the U.S. population below 24 years of age from the U.S. Census;
INS is the proportion of population with health insurance coverage calculated from census
data and industry statistics. With regard to the latter, see, e.g., HEALTH
INSURANCE ASSOCIATION OF AMERICA, SOURCE BOOK OF HEALTH INSURANCE, 1988 UPDATE 3.
NEISS is a dummy variable controlling for the 1979 sample change.
PEDS is the pedestrian fatality rate per million automobiles in use based on FARS data.
Rodgers uses pedestrian fatality estimates from the National Safety Council but bicycle
fatalities from the FARS. Rodgers, supra note 79, at 312 n.9. There are
significant differences between the two; this study uses pedestrian fatalities from FARS.
- The numbers following the equations indicate, for respective
independent variables, individual statistical significance given by the t test. Following
notes indicate for each equation, respectively, variance in the data accounted for by the
equation, statistical significance, and autocorrelation among variables.
- R2 = 0.62, p = 0.021, and Durbin Watson d = 0.85.
- R2 = 0.96, p = 0.000, and Durbin Watson d = 0.92.
- R2 = 0.72, p = 0.014, and Durbin Watson d = 1.47.
- Of the four CPSC variables tested, the complex model with a ten year
life obtained the most significant results, supporting Rodgers' argument against using a
simple model. See supra note 84 and related text.
- If the NEISS figures are too inaccurate to be used, fatality rate
could be used as an imperfect measure of the standard's effects. A similar multiple
regression was run for fatality rate, but found population to be the only significant
independent variable. The coefficient for the CPSC standard was negative, at least showing
that it is associated with decreased fatalities, even though this relationship is not
- See supra notes 39-41 and related text.
- As discussed supra at note 85, the use of a lagged
dependent variable as an independent variable to correct for autocorrelation was not
statistically significant, and achieved a negative coefficient showing an inverse
relationship with the dependent variable. It also failed to improve the Durbin Watson d
- This rule has also been criticized as an attempt by domestic
manufacturers to restrict foreign competition. See, e.g., Cornell, Noll &
Weingast, Safety Regulation, in SETTING NATIONAL PRIORITIES: THE NEXT TEN YEARS
457, 493-4 (H. Owen & C. Schultze eds. 1977), Viscusi, supra note 9, at 552,
and S. Breyer, REGULATION AND ITS REFORM 115 (1982). For a refutation of this view, see
Petty, The Consumer Product Safety Commission's Promulgation of a Bicycle Safety
Standard, 10 J. PROD. LIAB. 25, 32-8 (1987). Actually the main goal of the domestic
industry appears to have been to preempt state standards. See CONSUMER PRODUCT
SAFETY ACT AMENDMENTS: Hearings on H.R. 5361 Before the Subcomm. on Cons. Protect. and
Fin. of the House Comm. on Interstate and Foreign Commerce, 94th Cong. 1st Sess. 24,
65 (1975) (Statements of Jay Townley, Schwinn Bicycle Co. and John R. F. Baer, Bicycle
Manufacturers Association of America).
- Even CPSC Economist Rodgers finds no statistically significant
relationship between the standard and the injury rate. The major difference between our
analyses appears to be his use of riders per bicycles in use as an independent variable to
control for intensity of use. Such a measure presumes that when there are more riders
relative to bicycles in use according to the CPSC Product Life Cycle Model, more bicycling
is done than when there are relatively few riders per bicycle. Rodgers, supra
note 79, at 315-6. As discussed supra at notes 76-81, the best measure of bicycle
use, other than bicycle miles travelled (which is not available in the U.S.) is simply the
number of people who consider themselves active bicyclists. For this reason, adopting
injuries or fatalities per bicyclist as the dependent variable automatically controls for
intensity of use.
- See supra notes 24-5 -- sources and accompanying
text. See also, Heiden et al., The Utility of the U.S. Consumer Product
Safety Commission Injury Data System as a Basis for Product Hazard Assessment, 5 J.
PROD. LIAB. 245-319 (1982) (1980 bicycle injury data is accurate ± 27% with a 95%
confidence level). Rodgers asserts that the NEISS standard of error for bicycle injuries
is ± 7-11%. [original said +, not ± in both instances-- editor] Rodgers, supra
note 79, at 316.
- Compare Rodgers, supra note 79, at 315 (helmet use by
bicyclists may cause reckless behavior), Graham & Lee, Behavioral Response to
Safety Regulation: The Case of Motorcycle Helmet Wearing Legislation, 19 POL'Y.
SCIENCES 253 (1986), and Peltzman, The Effects of Automobile Safety Regulations,
83 J. POL. ECON. 677 (1975) with Crandell & Graham, Automobile Safety Regulation and
Offsetting Behavior: Some New Empirical Estimates, 74 AM. ECON. REV. PAPERS & PROC.
328 (1984). See also Viscusi, The Lulling Effect: The Impact of Child
Resistant Packaging on Aspirin and Analgesic Ingestions, 74 AM. ECON. REV. PAPERS
& PROC. 324 (1984).
- J. FORESTER, supra note 28, at 96.
- 3 CONSUMER PROD. SAFETY GUIDE (CCH) ¶46,671 (1984).
- FARS, supra note 35, ch. 8 at 12.
- J. FORESTER, supra note 28, at 368-9.
- 1986 BICYCLE USA ALMANAC 28-9 (1986).
- Capuano v. Almart Stores, Inc., 1 Prod. Liab. L. Rep. (CCH) 78 (PA
Northhampton County Court of Common Pleas # C-3849, Aug. 1982). This holding is contrary
to another court's decision prior to promulgation of the CPSC standard. See
Poppell v. Waters, 126 Ga. App. 385, 190 S.E. 2d 815 (1972) (The absence of a headlight is
obvious so there is no duty to warn).
- Petty, supra note 95, at 43-4 and Rodgers, supra
note 79, at 315-7.
- See sources cited supra at notes 31-3 and BUREAU
OF PRODUCT SAFETY, supra note 49, at 5-7.
- 559 F.2d at 793.
- J. FORESTER, supra note 28, at 363-9.
- Rodgers, supra note 79, at 316.
- J. FLORA ET AL., EXTENSION OF THE NEISS DATA ANALYSIS INCLUDING CPSC
IN-DEPTH REPORTS OF BICYCLE-ASSOCIATED ACCIDENTS 21 (1977) and Flora & Abbott, supra
note 26, at 25. Interestingly, this study found that bicycles identified as being in
compliance with the BMA/6 standard (upon which the CPSC's standard is based) had a
slightly higher rate of product failure than bicycles which would not be identified as
complying with the standard. This difference was not statistically significant. Id.
at 24. See also, J. FORESTER, supra note 28, at 52, 84. (estimating that
6% of all bicycle-related injuries and fatalities are caused by equipment failure); the
University of Kansas Medical Center Survey, supra note 32, reported bicyclists
blaming mechanical problems as the cause of 15% of their accidents. STUTTS ET AL., supra
note 25, at 14, reports that 15.6% of bicycle related injuries treated in North Carolina
emergency rooms in 1985 and 12.5% of those in 1986 were reported caused by mechanical
- J. KAPLAN, CHARACTERISTICS OF THE REGULAR
ADULT BICYCLE USER 51 (1975). See also, VIRGINIA DEPARTMENT OF HIGHWAYS AND
TRANSPORTATION, PLANNING AND DESIGN OF BIKEWAYS (1974) (Bicycle defects were contributing
factors in less than 3% of all bicycle-motor vehicle accidents) and a survey of children
bicyclists between April and September 1983 in the Emergency Department of the Children's
Hospital of Philadelphia found that they reported only 3% of all accidents occurred
because of equipment failure. However, the bicycle was known to be in need of repair by
the child or caretaker in 24% of the cases. Selbst et al., supra note 54, at 141.
- FLORA, supra note 110.
- Kenneth Cross' study of bicycle/motor vehicle accidents found that
brakes had the highest frequency of alleged contribution to bicycle/motor vehicle
accidents. This problem was reported to be a contributory factor in 6% of the accidents
studied. K. CROSS, supra note 25, at 36-7.
- P. HILL, supra note 34, at 27.
- Id. at 27-36. Hill summarizes the following cases: Poppell v.
Waters, 190 S.E.2d 815 (Ga. App. 1972), Means v. Sears, Roebuck, 550 S.W. 2d 780 (Mo.
1977), Reis v. MTD Products, 456 A. 2d 211 (Pa. Super. 1983), Walden v. Sears, Roebuck and
Co., 654 F. 2d 443 (5th Cir. 1981), Caporale v. Raleigh Industries, 382 So.2d 849 (Fla.
1980), Washington v. Otasco, Inc., 603 F. Supp. 1295 (N.D. Miss. 1985), Outwater v.
Miller, 158 N.Y.S.2d 562 (1957), Khoder v. AMF, Inc., 539 F.2d 1078 (5th Cir. 1976),
Tomczuk v. Town of Cheshire, 217 A.2d 71 (Conn. 1965), Levin v. Cleveland Welding Co. 87
N.E.2d 187 (Ohio 1963), Wilson v. Naifeh, 539 P.2d 390 (Okla. 1975), Barnes v. Sears,
Roebuck, and Co., 406 F.2d 859 (4th Cir. 1969), and Parisi v. Carl W. Bush Co., 67 A.2d
875 (N.J. 1949).
- Capuano v. Almart Stores, Inc., 1 Prod. Liab. L. Rep. (CCH) 78 (Aug.
1982) and Harris v. Giant Man. Co., 4 Prod. Liab. L. Rep. (CCH) 8 (Jan. 1985).
- Wall St. J., Feb. 11, 1987, at 29, and Legal Times of Washington,
Jan. 22, 1987, at 1, 8-10. See also Rodgers, The Effectiveness of Helmets in
Reducing All-Terrain Vehicle Injuries and Deaths, 22 ACCIDENT ANAL. & PREV. 47
(1990) (1,100 ATV fatalities and 400,000 emergency room-treated injuries since 1982).
- The CPSC and the Department of Justice recently announced a
preliminary settlement of a lawsuit to recall all three wheeled ATVs. The settlement
called for a ban of all future sales of three wheeled ATVs but has been criticized as too
lenient. Nat'l L. J., May 2, 1988, at 8.
- But see Rodgers, supra note 79, at 315-6 (helmet
use positively related to fatality rate, but not significantly related to head injury
- See supra notes 39-40 -- sources and related text.
- Thompson, Rivara, & Thompson, A Case-Control Study of the
Effectiveness of Bicycle Safety Helmets, 320 N. ENG. J. MED. 1361 (1989).
- Dorsch et al., Do Bicycle Safety Helmets Reduce Severity of Head
Injury in Real Crashes?, 19 ACCIDENT ANAL. & PREVENTION 183 (1987).
Conclusions and Recommendations
- A. WILDAVSKY, SEARCHING FOR SAFETY 183 (1988).
- Thomas, Revealed Bureaucratic Preference: Priorities of the
Consumer Product Safety Commission, 19 RAND J. ECON. 102, 112 (1988) (CPSC favored
mandatory standards over other types of projects and weighed safety benefits more heavily
than consumer costs).
- For similar research showing negative safety effects for bicyclists
from changes in roadway design and other engineering "improvements", see
Johnson et al., The Wheels of Misfortune: A Time Series Analysis of Bicycle Accidents
on a College Campus, 2 EVALUATION Q. 608, 617 (1978) ("... engineering and
impounding interventions intended to create a safer biking environment have had no
significant impact on the number of bicycle accidents. They may also have made things
- The Consumer Product Safety Act's authorization to set mandatory
standards was amended in 1981 to require the CPSC to rely on voluntary standards
"whenever compliance with such voluntary standards would eliminate or adequately
reduce the risk of injury addressed and it is likely that there will be substantial
compliance with such voluntary standards." 15 U.S.C. § 2056(b). See
generally, Klayman, Standard Setting Under the Consumer Product Safety Amendments of
1981 -- A Shift in Regulatory Philosophy, 51 GEO. WASH. L. REV. 96 (1982). Had this
section been operative when the CPSC considered bicycles, it may have simply chosen to
rely on the industry standard.
- See e.g., Viscusi, supra note 6, at 76
("Government regulation is the most effective institution for generating new risk
- K. CROSS & G. FISHER, IDENTIFICATION OF SPECIFIC PROBLEMS AND
COUNTERMEASURE APPROACHES TO ENHANCE BICYCLE SAFETY (1977). For other examples of useful
government efforts in this area, see sources, supra note 2.
- See Viscusi, Market Incentives for Safety, 78
HARV. BUS. R. 133 (1985) (arguing that government regulators underestimate the market
incentive of the profit motive for producing safe products).
- Accord Rodgers, supra note 79, at 317.
- See supra note 46 and related text.
- Weaver, The Hazards of Trying to Make Consumer Products Safer,
in CONSUMERISM: THE SEARCH FOR THE CONSUMER INTEREST 373 (D. Aaker & G. Day eds.
- 10 Pro Bike News 2 (Jul. 1990).
- See, e.g., Adler & Pittle, Cajolery or Command: Are
Education Campaigns an Adequate Substitute for Regulation?, 1 YALE J. ON REG. 159
(1984) (evaluating three education safety campaigns of varying degrees of success).
- 12 Bicycle Forum 3 (Dec. 1985).
- See supra note 55 and related text.
- The Head Smart Coalition, National Safe Kids Campaign, and other
groups, including the states of Florida and North Carolina, all planned helmet use
promotional campaigns for 1989. 22 Bicycle Forum 1, 2 (Win./Spr. 1989) and 9 Pro Bike News
1, 2 (Mar. 1989).
- 15 Bicycle Forum 20 (Spr. 1987).
- Id. at 23.
- Wilson, supra note 71, at 20.
- Elliott, Encouraging Helmet Wearing, in BIKESAFE, supra
note 76, at 355, 365, reprinted and condensed in 23 Bicycle Forum 4-9 (Spr./Sum. 1989).
- S. BERCHEM, A COMMUNITY CAMPAIGN THAT INCREASED HELMET USE AMONG
BICYCLISTS: SUMMARY REPORT 19-20 (Traffic Engineering Division, Department of
Transportation, City of Madision, WI, 1986).
- At least one pair of commentators noticed this opportunity early in
the CPSC's existence: "The fact that at least 80% of the consumer product-related
injuries may not be caused by defective or unsafe products suggests that consumer
education has a large untapped potential for reducing such injuries." Miller &
Parausarman, Advising Consumers on Safer Product Use: The Information Role of the New
Consumer Product Safety Commission, 36 AM. MKTG. A. PROC. 372, 373 (1974).
- See e.g., Viscusi, Product Liability and Regulation:
Establishing The Appropriate Institutional Division of Labor, 78 AM. ECON. REV. 300,
303 (1988) (Proposing that firms be exempted from product liability suits if they can
demonstrate either compliance with a government regulation that leads to an efficient
degree of safety or the use of a hazard warnings program that leads the market to promote
an efficient level of risk.).
- See supra, notes 114-8.
- See, e.g., Landes & Posner, Adjudication as a
Private Good, 8 J. LEGAL STUD. 235 (1979); Goodman, An Economic Theory of the
Evolution of the Common Law, 7 J. LEGAL STUD. 393 (1978); and Rubin, Why is the
Common Law Efficient?, 6 J. LEGAL STUD. 51 (1977).
- See e.g., P. HUBER, LIABILITY (1988).
- Nat'l L. J., Nov. 2, 1990, at 25.
- Liability suits do not directly prevent injuries, only compensate
for them if fault is proved. In cases, like toxic substances, where fault is difficult to
establish, liability suits may not be an efficient indicator of the correctability through
standards of a safety problem. See, e.g., S. SHAVELL, ECONOMIC ANALYSIS OF
ACCIDENT LAW 277-285 (1987), and Adler, supra note 21, at 79-80.
- Halvorson v. Voeller, 336 N.W. 2d 118 (1983). See also
Graham, Helmetless Motorcyclists -- Easy Riders Facing Hard Facts: The Rise of the
"Motorcycle Helmet Defense", 41 OHIO ST. L. J. 233 (1980).
- The wearing of helmets is analogous to using seatbelts. According to
one recent article, the seatbelt defense in crashworthiness cases is recognized in 14
states, unsettled in 14 states, and rejected by the highest court in 14 states and by the
legislature in 8 states. Westenberg, Buckle Up or Pay: The Emerging Safety Belt
Defense, 20 SUFFOLK U. L. REV. 867, 886-9, 923-33 (1986).
- Supra note 129.