Will You Recover Damages if You Are Not Wearing a Helmet in a Motorcycle Accident?

 

What if You Are Not Wearing a Helmet in Your Motorcycle Accident?

Transcript:

Hi. I’m Jared Richards. I’m one of the partners here at Clear Counsel Law Group. One of our readers has recently asked what happens if you get into a motorcycle accident and you’re not wearing a helmet. Well, other than your head might splatter against the ground, there’s a question as to how it affects any settlement you might get.

Really, when we’re doing settlement posturing, we always have an eye to what would happen if this went to a jury. The question is, what would a jury do if they know that you don’t have a helmet on?

Well, this is kind of an area of undiscovered country. Now, this hails back to what we call the seat belt defense. Now, the seat belt defense is something that a defendant would want to try to bring to say that the injuries wouldn’t have happened, or they would not have been as bad if the victim had been wearing a seat belt, and they weren’t.

Well, in Nevada, we have a statute that specifically says that defendants cannot bring that as evidence, that a jury doesn’t get to see whether or not there is a seat belt in use.

Thanks to our 2015 legislature, thanks, guys, for listening to lobbyists, that rule has been repealed specifically against cab companies.

That’s right, because clearly cab companies are the people that we need to defend, because it’s not like we put our lives and bodies in their control and protection. I hope the sarcasm came through on this video.

But anyway, generally, the jury will not see whether or not there is seat belt use. Now, there are a few limited exceptions that we won’t go into here. But the question is, is that fair? Before I answer the motorcycle helmet question, the question is, is the seat belt rule fair?

Well, one of the answers, it doesn’t really matter if it’s fair. It is the law. As long as it’s the law, we follow it. But I think it is fair. There is a reason for it being far. Follow me through.

 

The Seat Belt Question Is More Difficult Than You May Think

Most people when they first hear that, they think, “Well, if he wasn’t wearing a seat belt, it’s his own darn fault.” Is that true? The question I have is, is not wearing a seat belt an invitation for somebody to hit you?

Not wearing a seat belt did not cause the accident.

Not wearing a seat belt did not cause somebody to run a red light or run a stop sign or drive drunk and hit you.

Wearing a seat belt is simply not wearing a seat belt. It’s not an invitation or consent to get hurt.

Now, yes, if you’d worn a seat belt, it would have prevented more damage. Now, that is a specific legal theory that the defense will try to bring up. The defense will try to bring up a term called “mitigation of damages.” The term “mitigate” means to lessen, to soften.

The rule is that if you’re a plaintiff and you’re an injured victim, you have the obligation to lessen your damages any way that you can.

Now the question is, does mitigation of damages apply in a seat belt situation? The answer is, the courts go both ways.

But the majority of courts seem to say that the answer is no. You don’t have a duty. Because mitigation of damages, that duty only starts after the injury is imminent.

Either it’s happened or it’s imminent. Most people don’t have cat-like reflexes that they see the accident coming and they can throw their seat belt on real fast. Now, my 7-year-old thinks he has those reflexes. But in reality, none of us do.

There’s not enough time between the accident and the injury to put on a seat belt, so that duty does not actually start. The obligation to mitigate damages doesn’t exist, or at least you are incapable of doing it in time, and thus it shouldn’t apply.

Now courts go both ways on that issue.

If you’re not in Nevada, and you don’t have a seat belt rule statute protecting you, then I don’t know which way the judge is going to go. But it makes sense that mitigation of damages only starts after the injury is imminent, then it wouldn’t apply.

Now, some would say, well, you should put your seat belt on every time. Look, you should, of course. Of course, we advocate, everybody should wear their seat belt. But the question is, for mitigation of damages purposes, when you get into your car in the morning and you drive away, is it reasonably likely that you’re going to get into an accident?

No, it’s not. Now it is possible.

It happens. But reasonably likely, do you think there’s a 50% chance every time you get in your car you’re going to get into an accident? A 20, a 10, a 5, a 1% chance? Not even a 1% chance that you are going to get into a accident that day when you get into your car.

So it’s not reasonably likely that you’re going to be injured. So while everybody should wear a seat belt, a jury should not know about it, about whether or not they were wearing a seat belt, in an effort for a defendant to try to decrease the amount of damages, decrease the jury award.

 

How All of This Applies to Your Motorcycle Accident

Now let’s move that over into the motorcycle accident arena. Well, I think you can see pretty clearly that wearing a helmet and wearing a seat belt, the analogy holds true between the two of them.

If duty to mitigate damages doesn’t exist in a car accident with a seat belt, it shouldn’t exist in a motorcycle without a helmet. The difference is, we do not have a law, a specific statute in the state of Nevada that says that use of a helmet does not come into evidence.

Really, you’d have to talk to your attorney and he is going to have to argue that how we deal with seat belts should bleed over to how we deal with helmets, that the law should be consistent across the two arenas. Even though we don’t have a statute, the principles that I just spoke about, that failure to wear a helmet is not an invitation to hit you.

Failure to wear a helmet is not a failure to mitigate damages, because you didn’t know you were going to be hit right then.

That being said, although it should not in theory, and I think in all ethics, should not affect the settlement amount, or the amount you get from a jury, please wear a helmet. Let’s just avoid the situation by having you wear the helmet.

If you have trouble after a motorcycle accident, please call me (702) 476-5900.

Well, that’s this video, and I hope to see you in another one.

 

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