QUESTION: Can my non-use of a helmet be used against
me to reduce my claim?
James M. Edwards, P.C.
1401 17th Street, Suite 330
Denver, CO 80202
FAX (303) 292-0924
ANSWER: The answer, for now, remains no, it should not be
introduced into evidence as proof of comparative negligence,
assumption of risk, or failure to mitigate damages.
The Colorado Court of Appeals recently re-affirmed prior
rulings that non-use of a helmet was irrelevant evidence and
cannot be used to prove fault or failure to lessen damages. In
so doing however, the Court made it clear that a savvy
insurance defense attorney may be able to present another
argument that will change this ruling. The result could be that
not wearing a helmet becomes similar to not wearing a seat belt
in an auto accident case.
The seat belt law states that certain persons are required to
wear a seat belt. If a person required to wear a seat belt is
injured in a car accident while not wearing a seat belt, then
the at-fault person can argue that the injuries were made worse
by the failure to wear the seat belt. The law does not require
that credible expert medical or engineering evidence be used to
explain how the non-use of a seat belt caused injuries or made
other injuries worse. The lawyers are allowed to argue the
point in their closing arguments without the need for expert
testimony. This gives a jury an opportunity to not award
compensation for something that had nothing to do with who
caused the accident.
Thus, in a future case, which may be your case, evidence of not
wearing a helmet could be presented to the jury along with an
argument that injuries, damages and losses are due to not
wearing a helmet. The jury could then determine that some or
all of your injuries, or your lost wages, are your fault
without having heard any scientific or medical evidence. Your
lawyer will need to be prepared to battle this new attack on
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JAMES M. EDWARDS, P.C. is a general practice law office with
an emphasis on personal injury matters and motor vehicle
claims. The office also handles traffic matters, criminal
matters, insurance questions, and consumer issues. The office
of JAMES M. EDWARDS, P.C. is located at 1401 17th Street, Suite
330, Denver, CO 80202, (303) 293-8191, Fax 292-0924. Initial
consultations are available at no cost.
Copyright 2009, James M. Edwards, P.C. All Rights Reserved.
No portion of this article may be reprinted or republished
without permission of the author. The article is meant to
advise the reader of general legal principles and trends. It is
not case specific legal advice. If you would like further
information, or would like to see a specific topic addressed in
a future article, please contact the author.