Overall, the number of fatal motorcycle crashes has dipped slightly in recent years. However, riders are still twenty-eight times more likely to die in these crashes. Numerous restraint layers protect victims in four-wheel vehicles, but most riders almost literally have only the clothes on their backs.
The force of these collisions usually throws riders off their bikes. As a result, they often suffer extremely serious injuries, such as spine injuries. When victims slam into the ground, even if they do not land on their backs, the jarring motion often knocks the spine out of alignment. Back surgery is always a risky proposition with no guarantee of success.
Compensation in motorcycle crash claims usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. A Marietta personal injury attorney is committed to maximum compensation for victims. Insurance company lawyers, on the other hand, do whatever it takes to reduce or deny compensation. Their efforts usually involve one of the motorcycle crash defenses listed below.
Last Clear Chance
This defense comes up frequently in motorcycle crash claims. Lack of visibility is directly or indirectly responsible for many of the motorcycle crashes in Georgia. Most riders who have gone down probably heard the tortfeasor (negligent driver) say something like “I never saw you” or “You came out of nowhere.” Excuses like these typically indicate the tortfeasor was not maintaining a proper lookout.
Left turn crashes are a good example. Assume Peter is riding southbound on Main toward the intersection of Elm. Meanwhile, David is sitting at the intersection, waiting to make a left turn against traffic. He thinks he sees a gap, and he turns left from Main onto Elm. But David does not see Peter, and Peter hits David’s passenger side.
At the scene, if police give anyone a ticket, they will probably cite David for failure to yield the right of way. But in court, the outcome might be different.
David’s driving error did not change Peter’s duty of reasonable care. Drivers must avoid crashes whenever possible. So, if Peter saw David turning and did not change lanes or speeds, Peter had the last clear chance to avoid the crash. Therefore, Peter is liable for damages.
At least that’s whet the insurance company will say. However, there is a difference between the last clear chance and any possible chance, especially for motorcyclists. Typically, if riders change speeds or lanes suddenly, they might lose control of their bikes and cause an even worse collision.
This defense has basically the same principle as last clear chance, but contributory negligence is broader. Insurance company lawyers can use this defense in many contexts to shift blame for the accident from the tortfeasor to the victim.
In fact, many motorcycle wrecks could involve contributory negligence. For example, alcohol is more likely to be a factor in these collisions. So, an insurance company lawyer could admit that the tortfeasor made an illegal turn, and argue that the victim’s marginal impairment really caused the crash.
This “thug factor” also comes up in the motorcycle prejudice defense, as outlined below.
Anyway, in contributory negligence cases, jurors must divide fault on a percentage basis. Georgia is a modified comparative fault state with a 50 percent bar. So, even if the victim was 50 percent responsible for the collision, the tortfeasor is still liable for a proportionate share of damages.
This law varies slightly in different jurisdictions. For example, neighboring Florida is a pure comparative fault state. In that jurisdictions, even if the victim was 99 percent responsible for the crash, the victim is still entitled to damages.
This legal defense is very similar to last clear chance. It arises in similar situations. And, if the defense holds up in court, it completely eliminates liability. This defense has two basic elements:
- Reasonable reaction to
- A sudden emergency.
Frequently, insurance company lawyers try to stretch this defense. They argue that a jaywalking pedestrian or a lane-splitting rider is a sudden emergency. But in this context, a sudden emergency is a completely unexpected situation, like a tire blow-out or a hood fly-up. So, this defense rarely applies in motorcycle wreck claims, even if the tortfeasor reasonably reacted to the situation.
Much like comparative fault, the helmet defense varies significantly in different states, even though most states have at least a limited motorcycle helmet requirement.
In Georgia, evidence of helmet non-use is generally inadmissible, both in the liability and damages portion of a trial. Helmets are much like seat belts. They have nothing to do with an accident’s cause, so use is irrelevant for liability purposes. And, accident victims have no duty to mitigate (voluntarily reduce) their damages prior to the crash. Otherwise, all motorists would be required to wear crash helmets, fireproof suits, and other protective gear.
Even if a Cobb County judge does allow evidence of helmet non-use, it’s not easy for insurance company lawyers to leverage such proof. Attorneys must do more than cite helmet safety statistics. Instead, a doctor must testify that a helmet could have prevented at least a certain percentage of the victim’s injuries.
So, even if the victim was not wearing a helmet and the helmet defense does apply, the victim could still be entitled to substantial compensation.
This defense is not found in any book or taught in any school. Nonetheless, if applied properly, it can substantially affect the outcome of a case.
Many Cobb County residents believe that motorcycle riders are thugs. So, they operate recklessly, often with little or no regard for the safety of others. The motorcycle prejudice is not as strong as it was back in the Hell’s Angels days, but it is still significant.
A Marietta personal injury attorney can overcome this defense in two ways. First, appeals to bias or prejudice are illegal. It does not matter if the bias is racial, ethnic, economic, or whatever. If attorneys object, judges normally forbid such arguments. Alternatively, an attorney can build up the victim in the eyes of jurors. In this way, even the most biased juror normally sees the victim as an exception to the rule.
Contact a Dedicated Lawyer
Substantial compensation is available in motorcycle crash claims, but insurance companies do not give up easily. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.