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Motorcycle Accident Not Wearing Helmet – Do I Have a Case?

Posted on: March 20th, 2019

Riding a Motorcycle and Not Wearing a Helmet, Do I Have a Case?

If you make the decision to ride a motorcycle and not wear a helmet, the probability of a serious traumatic brain injury and death increases exponentially if you are involved in any kind of collision. In Colorado, there have been 57 fatal accidents in 2019 alone any many of these involved motorcycles.

I remember early on in my career getting a phone call from a potential client because he and his girlfriend had just been in a serious motorcycle accident. They had the right of way proceeding through a green light in Denver, Colorado and a vehicle turned left in front of them causing them to fly in the air into oncoming traffic. My client didn’t own two helmets and lent his to his girlfriend that day. Sitting in his hospital room, he had a traumatic brain injury, fractured orbital bones, and permanent damage to his tear duct.  His right tear duct would, like clockwork, dispense a tear every few minutes which he couldn’t feel or notice because he couldn’t feel his face due to extensive nerve damage. He only noticed the issue with his right eye when his shirt would get wet from the tears dropping to his chest.

Motorcycle Accident Lawsuit

The first question he asked me was whether he had a motorcycle accident case. Given the fact he did nothing to cause the collision and acted as a responsible motorcyclist on the date of the collision (aside from failing to wear a helmet) he certainly did have a claim against the negligent driver. The next question he asked was what impact his decision to not wear a helmet would have on his personal injury claims against the driver. He was very concerned about this issue as he was never going to be the same person he was before getting struck by that vehicle.

We advised our client that as he was over the age of 18, he was not legally required to wear a helmet in the state of Colorado. Those under the age of 18 are required to wear DOT-approved helmets. This exact issue was litigated in 1984 in the case of Dare v. Sobule, P.2d 960 (1984). In that case, a motorcyclist was killed by a negligent driver and the case proceeded to a jury. The jury determined that the deceased motorcyclist was 80% at fault because he wasn’t wearing a helmet. The case was appealed, and the Colorado Supreme Court held that a Court must instruct a jury that operating a motorcycle without a helmet is not negligent and can’t be used as a basis to reduce the injured person’s damages. This means that the insurance defense attorney (hired by the insurance carrier to protect its money) is not going to be able to tell the jury that he wasn’t wearing a helmet and that he shouldn’t be awarded any money because the injuries wouldn’t have occurred if he was adequately protected by a helmet.

That is the law and jurors are expected to follow it. However, juries don’t always follow the law especially in light of evidence that suggests a helmet wasn’t worn. If the injured motorcyclist gets road rash all over his face which creates scarring, it is going to be difficult to “put the toothpaste back in the tube” and hope a jury doesn’t wonder whether all of his injuries would have occurred if he was wearing a helmet.

Motorcyclists are exposed enough when riding a motorcycle on the same roads as thousand-pound vehicles with people texting and engaging in all kinds of distracted driving. While we can’t control how others decide to operate their vehicles, you can control your decision to wear appropriate safety gear and protect yourself.

If you have been injured in a motorcycle collision, call us for a free evaluation and we are happy to answer any questions or concerns you may have.


Brian Pushchak | Personal Injury Law Firm Denver, CO
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