My Injured Child Wasn’t Wearing a Bicycle Helmet. What Happens in Court?

Most states have a mandatory bicycle helmet law. Florida’s version of this law requires all cyclists under 16 (bikers and passengers alike) to wear helmets. Usually, criminal laws, such as the DUI law, establish the standard of care in civil court. But that’s not always the case.

The bicycle helmet law is a good example. Accident victims don’t have a duty to mitigate (voluntarily reduce) their damages before a crash. Otherwise, drivers would have to wear fireproof suits and crash helmets. Therefore, Section 316.2065 is only marginally related to bicycle crashes in Florida. The principles discussed below also apply in motorcycle helmet and seat belt injury cases.

Because the law is so complex, if your child wasn’t wearing a bicycle helmet, a Maitland personal injury lawyer can usually still obtain compensation in court. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Not Wearing a Helmet

The so-called bicycle helmet defense is an affirmative defense. The insurance company must admit its insured driver was negligent and successfully argue that the law excuses this negligence. The bicycle helmet defense has two basic elements, both of which the insurance company must prove by a preponderance of the evidence.

First, an insurance company lawyer must prove the victim voluntarily chose not to wear an approved bicycle crash helmet.

As a general rule, hooks, snaps, buckles, zippers and other attachments that undergo lots of wear and tear are among the first parts of any garment, from a bicycle helmet to a bra, that wear out. Alternatively, the helmet buckle may still technically work, but it makes the helmet so uncomfortable that the pain distracts the operator.

If the buckle or other mechanism wasn’t working properly, a Clermont personal injury lawyer can successfully undermine the voluntary choice element. Evidence on this point includes safety recalls, the helmet’s age, and witness testimony.

Furthermore, in serious injury cases, when emergency responders take victims to hospitals, they almost always remove some or most of their clothes (including bicycle helmets) to treat their injuries. So, after the fact, it’s hard to determine if the victim was wearing a helmet.

Helmet Non-Use Substantially Caused Injury

The second prong is even more important and even harder to prove. The insurance company must prove their failure to wear a helmet, as opposed to the tortfeasor’s negligence, substantially caused injury. Insurance company lawyers cannot simply cite safety statistics and wag their fingers at victims.

Incidentally, commonly-cited bicycle helmet safety statistics are often inflated. But that’s the subject of a different blog.

Head injuries are a good example. Helmets may prevent some trauma injuries, like severe cuts. But they don’t prevent the brain from slamming against the inside of the skull during a fall off a bike. That motion substantially causes most head injuries. So, there’s a good chance the tortfeasor’s negligence would have caused a severe head injury, helmet or no helmet.

A Clermont personal injury attorney often partners with a physician specialist in these situations. This specialist refutes the helmet defense in court, ensuring maximum compensation for your injured child.

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:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0316/Sections/0316.2065.html