Motorcycle accidents can result in severe personal injuries, including amputation, traumatic brain injury (TBI), concussion, multiple fractures, paralysis, loss of spleen and other serious injuries. Motorcyclists may not be wearing a helmet at the time of their motorcycle accident. How does this impact the right to recover compensation for personal injury sustained in a motorcycle wreck?
Helmet laws vary from state to state. Some states require helmets at all times, while others do not. In addition, like seatbelt laws, states treat the absence of a helmet in different ways. In some states, the absence of a helmet can be used to support an affirmative defense called contributory negligence or comparative negligence. Comparative negligence is also known as comparative fault. Under contributory or comparative negligence, the motorcyclist can be held responsible for injuries caused by virtue of not wearing a helmet. In some states, if the amount of fault apportioned to the motorcyclist exceeds 50%, no recovery can be had. In other states, the motorcyclist’s recovery is reduced by the percentage of fault attributed to him or her.
Again, depending upon state law, the defense attorney, usually hired by the defendant’s insurance company, has the burden of proving that the absence of a helmet resulted in or contributed to injury. When the injury sustained by the individual relates to body parts outside of the head or neck, it is not likely that injuries to those portions of the body would have been avoided with helmet use. However, absence of a helmet can be used as an excuse for why an individual sustained traumatic brain injury or serious neck injuries. Again, the science behind such allegations is dubious. An individual can sustain traumatic brain injury even with a helmet in place. A severe blow to the head may result in a concussion. It is well-established that a subset of individuals who sustain a one – time concussion will develop a post-concussion syndrome or brain injury that can persist for years or even a lifetime.
Helmets are not designed to prevent internal injury caused to the brain by virtue of the brain striking the inside of the skull. The argument that a neck injury would have been avoided with use of a helmet is even less credible. However, in instances where the individual sustained a severe traumatic brain injury, including skull damage, the argument becomes much more credible. Even in jurisdictions where a helmet is not required, jurors may hold the absence of a helmet against the motorcyclist and infer liability or comparative fault and/or reduce the damage award.
According to the NHTSA, motorcyclists are over four times more likely to die in a motorcycle accident than the operator of a car. When a negligent driver causes a motorcycle accident that results in wrongful death, the presence or absence of a helmet will be at issue.
If you are a loved one has been the victim of traffic-related negligence that result in a motorcycle accident, either by rear ending the motorcycle, crossing the centerline, head-on collision, or making a negligent left-hand turn, you should contact a personal injury attorney, like Mishkind Kulwicki Law Co., L.P.A., a personal injury attorney, for advice.