California is a comparative negligence state. That means that if the plaintiff
and the defendant both share some responsibility for a crash, the judge
or jury must determine each party’s percentage of fault. The potential
personal injury award is reduced by the injured party’s percentage
of the total negligence. For example, if the jury awards $100,000.00 in
damages and you were found to be 20 percent responsible, your damages
would be $80,000.00.
In addition to attempting to
shift blame for the accident to the plaintiff, defendants in a personal injury suit will also attempt to argue that
the victim could have prevented or lessened the resulting injuries by
taking certain safety precautions, such as wearing a seat belt, motorcycle
helmet, or bicycle helmet.
All passengers must wear a safety belt under California law. The
California Vehicle Code also expressly states that a defendant may assert that the plaintiff was
negligent because he or she failed to wear a seat belt. However, it does
not establish negligence as a matter of law or negligence per se for comparative
fault purposes. Accordingly, it is up to the jury to decide whether, in
the exercise of ordinary care, the plaintiff should have used a seat belt
and the nature of injuries and damages the plaintiff would have sustained
if he or she had done so.
Bicycle helmets are treated slightly differently because California law
does not require them, at least for adults. In fact,
proposed legislation that would have required all adult bicyclists to wear helmets recently failed to garner enough support from lawmakers. In the absence
of a helmet law, plaintiffs have a stronger argument that failing to wear
one is reasonable, particularly if the bicycle accident victim was taking
a short ride and/or riding in a relatively safe area, i.e. biking around
a suburban neighborhood.
Bicycle helmets can help riders survive a serious accident, but they do
not prevent all traumatic brain injuries. In addition, other injuries
are also common in a bike crash, such as spinal cord injuries, broken
bones, and lacerations. Accordingly, in some cases, plaintiffs can argue
that wearing a helmet would not have made a difference.
Of course, while it may be possible to defeat a comparative negligence
claim, bicyclists should still consider the important safety benefits
of wearing a helmet.
If you or someone you love has been seriously injured in a San Diego bicycle
accident, don’t hesitate to
contacta San Diego personal injury attorney at the Law Offices of Robert Vaage for a free consultation.