Civil Negligence in Motorcycle Accidents
by
Attorney Steve Olson
For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP
You're going down the interstate on your motorcycle on a beautiful afternoon. Last week, your headlight burned out and you haven't had a chance to replace it. You're driving 75 mph and switch to the passing lane as you overtake a slower auto. As you come alongside, the auto changes lanes to pass a truck. You're hit, sending your bike careening into the median. Despite your best effort to 'ride it out', you hit an unseen rut in the tall grass, spilling your bike. Neither you nor your passenger are wearing helmets. You're injured and your passenger suffers a skull fracture and concussion.
What happens when you bring a legal claim against the automobile driver? It all depends. This hypothetical has complicating factors. To bring a claim, you must prove both that the other driver was negligent and that their negligence was a cause of the crash. Negligence is defined as doing something a reasonable and prudent person wouldn't have done, under circumstances where it is foreseeable someone could be injured as a result. As to the 'cause' question, the negligence must be a 'substantial factor' in causing the accident. There can be more than one cause. In this example, there should be no problem proving negligence since the auto driver likely did not exercise proper lookout prior to the lane change, and the improper lane change caused the accident. However, also factored into the mix is whether you were negligent and, if so, did your negligence contribute to the cause of the accident?
Under the facts of this hypothetical, could you be found contributory negligent? That is a possibility. The law requires your motorcycle have an operating headlight. You knew for the last week the light was burned out, but continued to ride anyway. A reasonable & prudent person would have fixed the headlight. You're probably negligent. However, was your negligence a cause? For the headlight to be a legal cause, it must be a 'substantial factor' in the crash. Was it a bright, sunny day where the lack of a headlight made little difference, or, was it around dusk? Let's change the facts. Instead of the light burning out a week ago, the headlight quit that morning and you just noticed ten miles back. Under these facts, you're probably not negligent. Would a reasonable & prudent person have continued driving until they could find somewhere to buy a new headlight? Of course they would - you're hardly going to park your bike alongside the interstate and walk!
Another factor is speed. You were driving 75 mph in a 65 zone. Is that negligent? Unfortunately, it is. Civil law dictates that the violation of statutes which protect against accidents is negligence 'per se'. This means the judge will instruct the jury that you were negligent: the jury doesn't get to make that call. However, even though the jury will be told you're negligent in speeding doesn't necessarily mean they will decide your negligence is a 'substantial factor' (cause) of the crash. In this hypothetical, the cause question may depend on whether it was weekday rush hour on I-43 in southern Ozaukee County (heavy traffic) or early Saturday afternoon in northern Manitowoc County (light traffic). Keep in mind that the higher the speed, the less reaction time is available for both you and the auto driver, therefore, the more likely your speed will be a legal cause of the crash.
What about the lack of a helmet? Your passenger suffered a skull fracture and concussion. Is failing to wear a helmet negligent? As of March, 2004, Wisconsin law was changed to ban the introduction of lack of helmet evidence in a civil accident case. This applies to motorcycles, ATV's and snowmobiles. Legal theory: if Wisconsin doesn't require riders wear helmets, how can they be negligent when they are complying with the law? Prior to this legislation, if an injury would have been prevented or reduced if the rider wore a helmet, the jury was given that evidence and could reduce damages because the rider had no helmet. There are exceptions to the law. Any cycle driver with an Instructional Permit must wear a helmet, as well as anyone under the age of 18, passengers included. If your passenger was a minor, you will probably be found negligent for not ensuring they wore a helmet. Helmets are different from safety belts. Wisconsin requires safety belts. Accordingly, the jury may reduce by a maximum of 15% any damages awarded which would have been prevented or reduced if a seat belt had been worn in an automobile accident.
Tip of the day: You're not 10% negligent just because you were there. This is nothing more than an insurance company fiction, created to reduce damage payouts. Not long ago, I received a call from someone who was trying to resolve her claim with an insurance company without an attorney. The insurance company told her she was 20% negligent just for being there. She was struck in an intersection when she had the green light. The truth is the law states you're only negligent if you did something an ordinary and prudent person would not have done under circumstances where it is foreseeable someone could have been injured as a result. Would a prudent person have gone through an intersection when they had the green light? Of course!
For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP