Attorneys Use Contributory Negligence as Affirmative Defense in Motorcycle Accident Claims
A person injured in a motorcycle accident that is a direct result of another driver’s negligence, requires legal representation by a knowledgeable and experienced personal injury attorney that understands and can counter the defenses employed by defendant’s counsel. Defendant will likely attempt to portray the cyclist as a “risk-taker” who is in whole or part to blame for his or her own injuries. Why? Because Indiana’s comparative fault law proclaims that a Plaintiff who is more than 50% at fault for his or her own injuries cannot recover for damages.
Indiana Code 34-51-2-6 states:
“…the claimant is barred from recovery if the claimant’s contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant’s damages.”
From a defense perspective, proving plaintiff’s contributory negligence would reduce or even eliminate the defendant’s financial exposure in the claim.
In an affirmative defense strategy, defendant’s counsel may attempt to plant the seed of negligence and portray cycling as an inherently risky behavior. Asking the jury to consider that the cyclist failed to mitigate their damages by opting not to wear a helmet is a very common defense. However, an experienced lawyer representing motorcycle claimants will petition the Court early on to disallow any speculation about Plaintiff’s failure to wear protective headgear. In State v. Eaton, 659N.E.2d232 (Ind. Ct. App. 1996) establishes that Indiana motorcyclists have no common law duty to wear a helmet or protective eyewear. Therefore absent any protective head gear or eyewear, defendant may not hold cyclist accountable for failing to do so and a jury may not speculate how the injured party’s damages might have been lessened if a helmet had been worn.
Motorcycle claims are very different from auto accident claims and require help from an experienced lawyer
Motorcycle lawsuits require counsel experienced in litigating cyclist’s claims. Call Charlie Ward today at 317-639-9501 for a free evaluation of your claim.