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Thursday, March 21, 2019
When you took your Motorcycle Safety Foundation (MSF) course to get your motorcycle license, you probably learned about ATGATT. This stands for “all the gear, all the time,” and it is meant to remind all riders to gear up every time they ride. Along with a helmet, following ATGATT means wearing boots, gloves, a jacket, and pants that are all specifically designed to reduce riders’ risk of injury in the event of a high-side or low-side accident.
But, following ATGATT is not the law. In fact, Illinois is one of only a few states that do not even require riders to wear a helmet. So, if you are injured in a motorcycle accident and it appears that your injuries would have been less-severe had you been wearing full riding gear, what does this mean for your claim for financial compensation?
Let’s start with the basics. If you were injured in a motorcycle accident in Chicago and the accident was someone else’s fault, you are entitled to just compensation. This is due to the basic legal principle of “negligence.” In Illinois (and the vast majority of other states), if someone else’s negligence causes you harm, that person is liable for your injury-related losses.
In the context of a motorcycle accident, this typically means seeking compensation under the negligent driver’s bodily injury liability (BIL) insurance policy. BIL insurance covers accident victims’ losses when the policyholder is deemed at fault, and it covers all losses stemming from the victims’ injuries. This includes not only medical bills and lost wages, but also pain and suffering, scarring and disfigurement, emotional trauma, loss of enjoyment of life, and all other current and future financial and non-financial losses.
In Illinois, all drivers are required to carry a minimum of $20,000 in BIL insurance per person per accident, with a total policy limit of $40,000 per collision. This means that regardless of whether you were riding by yourself or you were riding “two up,” you should have access to $20,000 in BIL coverage. Of course, this assumes that (i) the at-fault driver is insured as required by Illinois law, and (ii) the at-fault driver was solely at fault in the accident. However, in the case of a motorcycle accident, a rider’s losses can easily exceed $20,000; and, in this scenario, it will be necessary to look to other sources of financial compensation. Depending upon the circumstances involved these other sources may include:
Now, let’s get back to the issue of not wearing full riding gear. Essentially, this boils down to a question of: What happens if you are partially at fault for your own injuries? If you had the option to wear riding gear and you chose not to do so, should this reduce (or eliminate) your financial recovery?
In Illinois, the question of whether partial fault in a motorcycle accident will reduce your financial recovery is governed by the principle of “contributory negligence.” Contributory negligence laws vary from state to state; and, in Illinois, the law states:
In all actions on account of death, bodily injury or physical damage to property in which recovery is predicated upon fault, the contributory fault chargeable to the plaintiff shall be compared with the fault of all tortfeasors whose fault was a proximate cause of the death, injury, loss, or damage for which recovery is sought. The plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any economic or non-economic damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.
In other words, Illinois has adopted a 51% standard. If you are 51% or more at fault for your own injuries, then you are not entitled to financial compensation under Illinois law. On the other hand, if you are less than 51% at fault (and even if you were equally at fault), you can still recover a portion of your losses based upon your percentage of fault. Let’s look at some examples:
As you can see, the determination of your percentage of fault can greatly impact your right to financial compensation after a motorcycle accident in Illinois. However, with regard to the question of whether deciding not to wear full riding gear constitutes a form of contributory negligence, the answer is far from straightforward.
The determination of contributory negligence must necessarily be made on a case-by-case basis. In this regard, one of the key things to remember is that the negligence must “contribute” to the accident. Even if you are drunk, if your intoxication does not contribute to the accident (i.e. if you are hit while waiting at a red light), then you are not partially at fault for your injuries.
Applying this principle to ATGATT, you can easily see that failing to follow ATGATT will not necessarily reduce an injured motorcycle rider’s financial recovery in all – or even most – cases. While gloves, jackets, and pants are designed to reduce the risk of road rash, they are not capable of preventing traumatic injuries such as broken bones, soft tissue damage, and spinal cord injuries resulting from motorcycle accidents. Similarly, while a sturdy pair of riding boots can help protect your ankles if you need to put your feet down at a very low rate of travel, riding boots are no match for the forces involved in an accident at public roadway or highway speeds. To think about it a different way: If a car cannot withstand the forces involved in a collision, there is simply no way that a piece of clothing is going to fully protect you.
With regard to helmets, the same basic considerations apply. While DOT and Snell-certified helmets are designed to reduce the risk of certain types of head injuries, they are not guaranteed to prevent all injuries in all accidents. If you suffered a traumatic brain injury (TBI) or other head injury in a crash and you weren’t wearing a helmet, in order to reduce your recovery under the rule of contributory negligence, the at-fault driver (or his or her insurance company) would need to be able to show that a helmet would have protected you. And, if you suffered a non-head injury such as a broken leg, then your helmet use (or lack thereof) is entirely irrelevant to your claim for financial compensation.
All of this means that you need to be very careful to avoid making any assumptions about your legal rights after a motorcycle accident in Chicago. Do not assume that riding gear would have protected you, and do not assume that your decision not to follow ATGATT is going to prevent you from recovering financial compensation. However, the one thing you can assume is that the insurance companies are going to try to blame you for your own injuries; and, to make sure you avoid mistakes that could jeopardize your financial recovery, the best thing you can do is to speak with a Chicago motorcycle accident lawyer as soon as possible.
If you were injured in a motorcycle accident in Chicago, we encourage you to contact us for a free, no-obligation consultation about your legal rights. To discuss your case with an experienced attorney at Malman Law, call 888-625-6265 or request an appointment online now.
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NOAH TAFFELPersonal Injury Victim