I Wasn’t Wearing a Helmet. Can I Still Get a Motorcycle Crash Settlement?

You just asked a mouthful. Although Florida’s motorcycle helmet law doesn’t apply to most riders over 21, the Sunshine State’s motorcycle helmet defense law, which is similar to the seat belt defense law, is unusually broad. Wearing a seat belt is a lot like wearing a motorcycle helmet, at least in terms of negligence law. Operators and passengers, who have a duty to protect themselves, should take these simple precautions.

However, the motorcycle helmet defense is an affirmative defense, which means the insurance company must prove all elements of this defense. Additionally, the motorcycle helmet defense is usually a partial defense, at best. So, if you weren’t wearing a helmet you can still get a substantial motorcycle crash settlement, if you have a top-notch Clermont personal injury lawyer in your corner.

Elements of the Defense

Statistically, motorcycle helmets prevent head injuries. However, as outlined below, insurance company lawyers must do more than cite safety statistics. Additionally, these statistics usually address trauma-related head injuries. They don’t address motion-related head injuries (the victim’s brain slams against the skull as the victim falls off the bike).

In court, insurance company lawyers must prove the victim was, by choice, not properly wearing a helmet and the failure to wear a helmet substantially caused the victim’s injuries.

Some motorcycle helmets have design flaws and don’t provide proper protection. Other times, the buckle mechanism wears out, due to excess wear and tear. Therefore many victims aren’t properly wearing helmets through no fault of their own.

The substantial cause prong is even harder to prove. Usually, the insurance company must call a medical expert to the stand who testifies that, if the victim was wearing a helmet, the victim would’ve emerged from the crash unscathed, at least in terms of head injuries.

That head injury point is significant. Motorcycle helmets don’t prevent broken bones, spinal cord injuries, and other serious crash-related injuries. So, a Clermont personal injury attorney can obtain compensation for these injuries, even if the motorcycle helmet defense holds up in court.

Furthermore, the substantial cause prong is a chicken-or-the-egg question. A helmet prevents crash injuries, but if the tortfeasor (negligent driver) hadn’t caused a crash, the issue would be irrelevant.

What it Means

According to Florida law, the failure to wear a motorcycle helmet can be used as evidence of comparative negligence.

Comparative negligence shifts blame for an accident, or in this case blame for the injuries that accident caused, from the tortfeasor to the victim. Based on the evidence presented, jurors must divide responsibility 50-50, 80-20, or on another percentage basis.

Most states are modified comparative fault states. Victims who are more than 50 or 51 percent responsible for a crash are ineligible for compensation.

Florida is a pure comparative fault state. Even if the victim was 99 percent responsible for the wreck, the tortfeasor is liable for a proportionate share of compensation. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Contact a Diligent Orange County Lawyer

Injury victims are entitled to substantial compensation. For a confidential consultation with an experienced personal injury lawyer in Clermont, contact Goldman Law, P.A. Virtual, home, and hospital visits are available.

Source:

law.justia.com/cases/florida/supreme-court/1997/86280-0.htmlhttps://law.justia.com/cases/florida/supreme-court/1997/86280-0.html