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The Tennessee legislature recently adopted Public Chapter No. 907 which was signed into law by Governor Bill Haslam on May 10, 2012. This bill amended T.C.A. § 55-8-164 to add a new subsection (e). This addition to the statute makes it a Class C misdemeanor in the State of Tennessee when an operator of a motorcycle carries a child whose feet are not on the footpegs of the motorcycle.
T.C.A. § 55-8-164 provides as follows (the section added by this amendment is in bold):
(a) A person operating a motorcycle shall ride only upon the permanent and regular seat attached thereto, and such operator shall not carry any other person, nor shall any other person ride on a motorcycle, unless the motorcycle is designed to carry more than one (1) person, in which event a passenger may ride upon the permanent and regular seat if designed for two (2) persons, or upon another seat firmly attached to the rear or side of the operator.
(b) A person shall ride upon a motorcycle only while sitting astride the seat, headlamp illuminated, facing forward, with one (1) leg on each side of the motorcycle.
(c) No person shall operate a motorcycle while carrying any package, bundle, or other article which prevents the person from keeping both hands on the handlebars.
(d) No operator shall carry any person, nor shall any person ride, in a position that will interfere with the operation or control of the motorcycle or the view of the operator.
(e)(1) An operator commits an offense who, on the streets of any municipality, roads of any county, or the highways of this state, carries a child as a passenger on a motorcycle whose feet are not on footpegs. Provided, the provisions of this subsection shall not apply to persons riding in a motorcycle sidecar.
(2)(A) A violation of this subsection is a Class C misdemeanor…
This amendment to the bill provides a potential basis for liability when an operator of a motorcycle carries a child who is not tall enough to reach the footpegs. In fact, this statute does not even limit the violation to circumstances where an individual is unable to reach the footpegs. Rather the motorcycle operator can be cited simply when the child’s feet are not on the footpegs. This new amendment can potentially provide support for a negligence or negligence per se claim against the motorcycle operator if the statute is violated and an accident results.
Negligence per se is not a different cause of action from ordinary negligence, “[r]ather, it is a form of ordinary negligence … that enables the courts to use a penal statute to define a reasonably prudent person's standard of care.” Rains v. Bend of the River, 124 S.W.3d 580, 589 (Tenn. Ct. App. 2003) (internal citations omitted). A finding of negligence per se makes it easier for a plaintiff to establish a viable cause of action for negligence. To recover under a theory of negligence per se, the plaintiff must establish the following:
First, it must be shown that the defendant violated a statute or ordinance which imposes a duty or prohibits an act for the benefit of a person or the public. Second, the proof must show that the injured party was within the class of persons whom the legislative body intended to benefit and protect by the enactment of that particular statute or ordinance. In addition to establishing negligence per se by showing these two elements, the plaintiff must of course show that such negligence was the proximate cause of the injury.
Smith v. Owen, 841 S.W.2d 828, 831 (Tenn. Ct. App. 1992). As a result this amendment to T.C.A. § 55-8-164 should be considered when defending any case involving a minor riding a motorcycle. The first portion of the statute discusses some of the general responsibilities for the operator of the motorcycle. The new portion of the statute adds the additional requirement that a child must have both feet on the motorcycle footpegs.
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