I didn’t wear a helmet. Can I still claim a motorcycle accident?

The nature and extent of injuries suffered by a motorcyclist after an accident are usually very serious. According to the National Highway Transportation Safety Administration, motorcyclists are almost five times more likely to die in accidents than people who ride in a car.

While a variety of factors contribute to why motorcycle accidents are often so serious, the main reason is that motorcycles do not provide protection to riders. If a motorcyclist is hit from any direction, they will almost certainly be thrown from the bike onto the ground, where they are at high risk of being run over by another motorist.

Wearing a helmet can reduce the chance of serious injury after a motorcycle accident

It has long been known that helmets significantly reduce the risk of injury or death in a motorcycle accident. Because of its effectiveness, 49 states – plus Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands – have laws that require motorcyclists to wear helmets. The states differ in their approach. 28 states require that only certain types of drivers wear helmets, typically drivers under the age of 18. The only state that doesn’t have a helmet law is New Hampshire.

Of course, regardless of any state law mandating the use of helmets, all motorcyclists should always wear a helmet when getting on a bike.

But if you don’t, can you still pursue personal injury against another driver?

In most cases the answer is yes. However, states differ in their approach when it comes to evidence of non-use of helmets or, as is often mentioned, helmet defense. In theory, there are three general approaches a state could take to helmet defense.

1: Total ban on helmet defense:

Some states do not allow a defendant in a motorcycle accident lawsuit to produce evidence that the plaintiff was not wearing a helmet. The reasons for this approach often stem from other cases in which an accident victim is not wearing a seat belt. If a state has already ruled that defendants in car accidents cannot bring up an accident victim’s failure to wear a seat belt, the possibility is that the state may apply the same logic to evidence of non-use of helmets.

2: Allowing a Defendant to Increase Helmet Defense to Reduce Damage to an Accident:

The majority of states allow a defendant to impose a plaintiff’s failure to wear a helmet to help the jury determine the appropriate amount of damage. In some ways, this approach makes sense because wearing a helmet, while not preventing an accident, can potentially mitigate an accident victim’s injury.

Of course, many states that allow helmet defense in the compensation phase of personal injury proceedings require the defendant to show that the plaintiff’s injuries would not have been as serious if they had been wearing a helmet. In other words, if a victim of a motorcycle accident suffered broken bones as a result of the accident but no head injuries, the victim’s failure to wear a helmet would likely not be relevant.

The states that have chosen this approach usually allow the jury to share errors between all parties, including the victim. Depending on the state law, an accident victim can usually recover from their injuries, provided that it is less than 50 or 51 percent to blame. However, the court will reduce the victim’s compensation by the percentage of his fault.

Suppose a plaintiff sustains serious head injuries and broken bones in a motorcycle accident. The jury finds that the plaintiff has suffered $ 1,000,000 in damages, but also finds that he was 30 percent responsible for his own injuries. If so, the plaintiff could get back $ 700,000.

3: Allowing a defendant to argue the helmet defense in both the liability and damages stages:

This approach is the rarest and for good reason. A motorcyclist’s failure to wear a helmet does not primarily contribute to the accident. In many states, adult drivers are not legally required to wear a helmet at all. It is therefore counterintuitive to allow a defendant to argue that the plaintiff’s injuries would not have occurred if he had been wearing a helmet and is largely counter to logic.

© 2020 by Console and Associates. All rights reserved.National Law Review, Volume X, Number 311