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
(303) 293-8191
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 motorcyclists.

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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.

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