Can I Sue for a Motorcycle Accident if I Wasn’t Wearing a Helmet?

by | Aug 22, 2019 | Motorcycle Accidents |

Can I sue for a motorcycle accident if I wasn’t wearing a helmet?

I mean, aren’t you just asking for a head injury if you don’t wear a helmet? Should the other driver be blamed for your decision not to wear a helmet? Didn’t you “assume the risk?” At a minimum, shouldn’t the other driver’s damages be reduced because you were not wearing a helmet?

These are all bulls*** arguments that insurance defense lawyers, and even some plaintiff’s lawyers, would like you to buy into – but they are not the law in South Carolina.

Insurance companies will do everything possible to deny a claim or not pay full damages after an automobile or motorcycle accident, including making arguments like those above if the courts would allow it. They don’t.

The defenses of “assumption of the risk” and “contributory negligence” do not apply to motorcyclists in SC, including a motorcyclist’s decision to wear a helmet or not wear a helmet, and SC law does not require any motorcyclist 21 years of age or older to wear a helmet.

If someone else’s carelessness caused your motorcycle accident, whether you were wearing a helmet at the time or not, the SC motorcycle accident attorneys at Coastal Law want to help. Call or email us to set up a free consultation to discuss your case.

Can I Sue for a Motorcycle Accident if I Wasn’t Wearing a Helmet?

If you were in a motorcycle accident, the last thing you want to hear is your attorney saying it was your fault simply because you were driving a motorcycle or because you did not wear a helmet. Your decision to ride and to ride without a helmet does not absolve other drivers of their duty to use reasonable care on the highway…

Does SC law say I can sue for a motorcycle accident if I wasn’t wearing a helmet?

Assumption of the Risk if a Motorcyclist is Not Wearing a Helmet

Assumption of the risk can be a valid defense in some civil cases, but it does not apply to a person’s decision to ride a motorcycle in SC.

Assumption of the risk is when a person undertakes a dangerous activity and, either expressly or impliedly, “assumes the risk” of harm that may be caused by someone else’s negligent or reckless conduct. Although insurance companies would like you to believe that applies to motorcycle accidents, the SC Supreme Court has held that it does not:

In the absence of express consent to assume the risk, the plaintiff’s conduct can be said to imply assumption of the risk where it is shown that he understood and appreciated a known danger created by the defendant, and then freely and voluntarily exposed himself to it. Id. As a matter of law, we find that a motorcyclist’s decision to ride without a helmet does not imply his consent that motorists are relieved of the duty to use reasonable care toward him. Cf. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 68 (1984 & Supp.1988) (a jaywalker does not consent that drivers shall not use due care to avoid him).

An insurance defense lawyer could just as easily say that you “assumed the risk” of an automobile accident by choosing to drive a car. Or that you “assumed the risk” of a trucking accident by knowingly sharing the road with eighteen-wheelers…

It’s not the law in SC, insurance defense lawyers are not allowed to argue it to a jury, and your attorney must take care that the jurors do not believe it if your case goes to trial.

Contributory Negligence if a Motorcyclist is Not Wearing a Helmet

What about contributory negligence?

SC has a “modified comparative negligence” rule – if you are partially at fault in an accident, you can still sue. But your recovery will be reduced by the percent that the jurors determine you were at fault – if you were more than 50% at fault in the accident, you recover nothing.

If I wasn’t wearing a helmet, does that decision somehow lessen the at-fault driver’s responsibility? Should they pay less than full compensation if I suffer a head injury in the accident?

Again, the SC Supreme Court says no:

We also find that Mayes’ failure to wear a helmet does not constitute contributory negligence. It is undisputed that Mayes had no statutory duty to wear a helmet at the time of the accident. Although S.C.Code Ann. § 56-5-3660 (1991) requires the use of a helmet by motorcycle operators and passengers under the age of twenty-one, Mayes was excluded from that duty because he was more than twenty-one years old when the accident occurred. In light of the fact that the Legislature has enacted a statute requiring the use of helmets and has specifically elected not to extend that requirement to motorcyclists twenty-one or older, we decline to create a judicial penalty for those exempted from the statutory duty. See Keaton v. Pearson, 292 S.C. 579, 358 S.E.2d 141 (1987) (declining to impose a duty to wear seatbelts when not statutorily required); Kealoha v. County of Hawaii, 74 Haw. 308, 844 P.2d 670 (1993) (the majority of jurisdictions have ruled against instituting a common law duty requiring motorcyclists to wear protective headgear).

The defense argument is that, although not wearing a helmet does not contribute to the cause of the accident, it contributes to the amount of damages suffered and therefore the insurance company should not pay full damages. Butthat’s not the law in SC.

Unlike some states, SC does not require motorcyclists over the age of 21 to wear a helmet. If the legislature does not require a helmet, the courts cannot step in and impose a penalty for not wearing a helmet, and a negligent driver is responsible for all damage that they caused – including head injuries that would not have happened but for the at-fault driver’s negligence.

SC Motorcycle Accident Attorneys in Myrtle Beach

Can you sue for a motorcycle accident if you weren’t wearing a helmet?

Yes – you do not “assume the risk” under SC law for riding a motorcycle or for choosing not to wear a helmet, and your recovery will not be reduced because you did not wear a helmet.

If you were hurt in a motorcycle accident because of another driver’s carelessness, the Myrtle Beach motorcycle accident attorneys at Coastal Law want to help you to recover full and fair compensation. Call now for a free consultation to discuss your case, by calling (843) 488-5000 or sending us an email.

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