Can You File for a TBI if You Did Not Wear a Motorcycle Helmet?

Friday, February 16, 2018

Can You File for a TBI if You Did Not Wear a Motorcycle Helmet?

Written by Malman Law, reviewed by Steve J. Malman.

Motorcycle riding carries an inherent level of danger that riders accept the moment they get on those two wheels. While you might take the risks, if you choose not to wear a helmet while riding your motorcycle, and you are involved in an accident, you might wonder if you can sue for a traumatic brain injury (TBI).

After all, Illinois is one of the few states that have no laws regarding motorcycle helmets. Therefore, you are not obligated to wear one while on the road, and if you did not cause the accident itself, you might wonder if you can receive compensation despite the fact you chose not to wear a helmet.

Filing a Lawsuit for a TBI in a Motorcycle Accident in Chicago

Yes, you can file a lawsuit even though you did not wear a helmet. If the other driver’s recklessness or negligence caused the accident, the law allows for you to seek compensation.

However, the success of that lawsuit depends on a few factors. Also, while you might qualify for compensation, you still should speak with an attorney in the state to explore your options and see what factors may affect your payment.

The Law

As previously stated, you are not required by law to wear a helmet in Illinois while on a motorcycle. In states where a helmet is required, your lawsuit would likely be challenged, and collecting compensation would be difficult because you violated the law.

So if you do cross state lines, are injured on a motorcycle, and the neighboring state has helmet laws, then you may have a difficult time seeking compensation for your accident. This is true even though your home state does not require that you wear a helmet.

Not wearing a helmet may result in other challenges when you are seeking compensation.

The Comparative Negligence Law

One issue that may come up when you file a claim or lawsuit is that of comparative negligence. In Illinois, the modified comparative negligence rule is used.

The state follows this rule to decide who is responsible for injuries and ultimately who will pay for the damages. It allows a plaintiff to seek compensation for injuries even though they were partially at fault. However, you can only file for compensation if you were 49 percent or less at fault for the accident.

If you were 50 percent or higher, then the court may bar you from seeking any compensation in your case.

Here is where it becomes complicated. You did not cause the accident, but if the damages you are requesting are solely related to the TBI, and you choose not to wear a helmet, then the law considers you at-fault for part of those damages. Had you worn a helmet, you may not have sustained the same type of injury.

Regardless, the courts would have to decide how much of a role you played in the TBI, and specifically how the absence of a helmet contributed to your injuries.

For example, say that you did not wear a helmet and suffered a TBI that left you permanently disabled. The court decides that you were 45 percent at fault for the injuries and accident, while the other driver was 55 percent at fault. Under modified comparative fault laws, you can still collect compensation.

However, your compensation is reduced by the amount of fault you contributed to your injuries. Therefore, if you were awarded $100,000, you would have your settlement reduced by 45 percent or $45,000. Then, you would receive $55,000 from the defendant.

What the Medical Experts Have to Say

In cases like this, it will become a battle of the medical experts.

The defense will bring a slew of doctors who will testify that your TBI would not have occurred had you worn a helmet. Your attorney will have medical experts and accident specialists prove that you would have sustained a head injury regardless of the helmet, but that your not wearing one might have increased the trauma slightly.

In the end it will come down to the medical evidence and experts that testify in your case. If your experts and the medical evidence convinces a jury or insurance claims adjuster that the defense was still more at-fault for your TBI, then you will receive compensation.

The Severity of the TBI and Types of TBI

Any type of brain injury can be traumatic. You could suffer a mild concussion, which may affect you for a few days or weeks. Other times, the TBI is more severe and could lead to permanent disability.

Some common types of TBIs seen in motorcycle accidents include:

• Skull Fractures – Skull fractures can occur when you are not wearing a helmet. A skull fracture can heal eventually on its own, but if the fracture is severe enough, bone fragments may permanently damage delicate brain tissue – leaving the victim with permanent deficits. These injuries often require immediate medical attention and may also require surgical intervention.
• Penetrating Injuries – Because a helmet protects the head, without one you are exposed to debris and other elements. You could suffer a penetrating trauma, such as a piece of debris piercing through the skull and entering the brain.

Wearing a Helmet Is Critical

The purpose of wearing a helmet is to ensure a motorcycle rider is protected, especially when it comes to head trauma in an accident. Even a minor accident can lead to a devastating TBI because the motorist failed to wear a helmet, which would protect them and cushion them from striking asphalt, another vehicle, or being hit by debris.

Helmets are durable and are tested numerous times before being sold to the public. They may also make the difference in whether a person lives or dies from a motorcycle accident.

Motorcycle helmets do save lives, and even the Centers for Disease Control and Prevention (CDC) shows that helmets prevent death by as much as 37 percent and reduces the risk of head injury by 69 percent.

Therefore, if you choose not to wear a helmet, a defense attorney could argue that you have accepted the risks and any TBI that results from an accident is not the defendant’s fault, but your own.

What Compensation Can a Rider Receive for a TBI?

If you are involved in a motorcycle accident, and you suffer a TBI as a result, you may be entitled to various forms of compensation, including:

• Medical Costs – Any medical costs associated with the accident directly, such as hospitalizations, ambulance rides, prescription medications, medical devices, surgical procedures, and doctor’s visits. Can include future medical costs, such as prescriptions or treatments needed to improve the victim’s quality of life.
• Rehabilitative Therapy – Often TBIs require that a victim goes through physical or rehabilitative therapy to learn how to live with their new disability or to regain function.
• Pain and Suffering – Addresses any physical pain, emotional, or mental suffering from the injury – including long-term pain and suffering.
• Property Damage – Includes damage to the motorcycle and personal belongings involved in the accident.
• Lost Wages – Any wages lost while recovering from a motorcycle accident, attending hearings for the lawsuit, or attending doctor’s appointments.
• Loss of Earning Capacity – When permanent brain damage prevents a person from earning a living, they may receive compensation for their loss of earning capacity.

The Victim’s Duty to Mitigate Damages

A critical area of law to note when considering damages is that you, the victim, must mitigate your damages. Therefore, you are required to find ways to reduce the medical costs or compensation value of your case. Because of this, the defense may argue that your not wearing a helmet disqualifies you for future medical treatments or loss of future earnings that are the direct result of your TBI.

Other Injuries May Be Fully Compensated

While recovering 100 percent for a TBI is difficult, other injuries are not the same. For example, if you suffered a severe spinal cord injury – which would not have been prevented by wearing a helmet – then the courts may allow you to seek full compensation for any damages resulting from that spinal cord injury.

Speak with a Motorcycle Accident Attorney in Illinois

If you have been injured, never hesitate to explore your options. Even if you were injured and did not wear a helmet in a motorcycle crash, you may still be entitled to compensation.

Meet with an attorney from Malman Law today to explore your options. Schedule your free consultation today at 888-625-6265 or request more information online.