Motorcyclists have it rough.
There’s no denying that, and if you’re reading this page, you probably know it already.
The motorcycle accident lawyers at TorkLaw have worked with motorcyclists long enough to know that they face unique challenges, both on the road and in the courtroom. The overwhelming amount of questions surrounding this subject has prompted us to put together this comprehensive guide on exactly what do after after a motorcycle accident.
Motorcyclists face all sorts of risks on the road which drivers of passenger cars do not. There are a variety of reasons for this.
For one, motorcyclists are much smaller than ordinary cars, which makes them harder to see, and easier for the driver of a passenger car to hit one by accident (particularly if the motorcyclist gets lost in a car’s blind spots).
For another, motorcycles are much more likely to overturn than passenger cars. Because motorcyclists are balancing on two wheels, like you would on a bicycle, they are in an inherently less stable position than occupants of four-wheeled vehicles.
Risks which pose only a minor nuisance to drivers, such as potholes, puddles of water, and debris, can be deadly for motorcyclists. Some motorcycles even have a tendency to wobble at high speeds, which makes it more likely that the rider will be thrown.
When motorcyclists do get in accidents, they have much less protection than the occupants of passenger cars. They do not have seat belts or airbags, and may not even have helmets. When motorcyclists get in collisions, even minor ones, they are frequently thrown directly onto the pavement, often at very high rates of speed.
All of these factors combine to make the road a uniquely dangerous place for motorcyclists. And sure enough, motorcyclists face a significantly higher risk of being injured or killed in an accident than do occupants of ordinary passenger cars.
Okay, so motorcycle accidents are horrible. Once you’ve been in one, the least society can do is cut you a break, right? Wrong. Unfortunately, motorcyclists face a significant degree of bias in the personal injury system, which can prevent you from getting what you deserve.
American drivers resent motorcyclists for a variety of reasons. Often, motorcycles seem to “appear out of nowhere” after getting lost in a car’s blind spots, and they make a lot of noise (which creates the false impression that they are traveling faster than they actually are.) Motorcyclists have every bit as much right to use the road as drivers, but unfortunately many Americans don’t recognize this.
But even beyond this, our society has all sorts of stereotypes of motorcyclists as reckless, deviant, and unconcerned with safety. Pop culture is full of images of rough-and-tumble bikers with wild hair and beards, roaring down the freeway from biker bar to biker bar, clad all in leather. (Never mind that leather is just as much for safety as it is for fashion.)
Of course, these stereotypes aren’t fair at all. Motorcyclists are a more diverse group than many people think, and include people from all walks of society. Some motorcyclists do have a tendency to be reckless, but so do a great many passenger car drivers. And the vast majority of motorcyclists (including those who fit the “biker” image) are good citizens who take every necessary safety precaution.
In fact, in collisions between motorcycles and passenger cars, the driver of the car is much more likely to be at fault. But unfortunately, a lot of people don’t know this, and so the stigma against motorcyclists persists.
Unfortunately for you if you were an injured motorcyclist, this stigma bleeds over into the personal injury legal system. Judges and juries are human, after all. They’re not immune to pop culture and the media. Even police officers, who should really know better, can be biased against motorcyclists.
All of this means that when motorcycle accident cases go to trial, injured motorcyclists regularly receive smaller verdicts than passenger car drivers would under similar circumstances.
Most accident claims don’t end up going to trial, but the bias still has ripple effects all the way down through the insurance industry. Adjusters know that if the case goes to court, the motorcyclist is less likely to win, so they routinely offer motorcyclists smaller settlements.
This is harsh, but it’s just how the industry works. The job of an insurance adjuster is to try and make the insurance company pay as little as possible. If they could, they’d give every accident victim zero. So of course they don’t miss a beat when they get the chance to take advantage of motorcyclists.
All of this makes for a gloomy outlook if you have been injured in a motorcycle accident. Even if you were not at fault in the slightest, you will still have a major hurdle to overcome in the form of a biased and unfair system.
This is why it is doubly important for you to hire the best personal injury attorney you can possibly can. It’s impossible to force people to change their minds, but a good lawyer who cares about your case can make it clear to all relevant parties that you were legitimately wronged, and cast you in a positive light free of stereotypes.
The system will be harder for you to navigate, but with the right lawyer at your side, you can do it.
In general, motorcyclists must follow the same laws as other vehicles on the road. They have all of the same privileges as drivers of larger motor vehicles do, but also the same legal obligations, including obeying the posted speed limit and all traffic signs and signals.
However, there are a few special stipulations which apply to motorcyclists:
Thousands of Americans are killed in motorcycle accidents every year. In 2015, nearly 4,700 motorcyclists were killed on the road. These deaths make up around 13% of all motor vehicle accident fatalities in America annually, and the number has been increasing over the past decade, during a time when car accident deaths in general have been on the decline.
In addition to the thousands killed in motorcycle accidents, tens of thousands more were injured. It is estimated that in 2015, around 88,000 motorcyclists were injured on American roads.
Overall, motorcycles are much riskier than cars. Motorcyclists are around 37 times more likely to die in an accident than drivers and passengers in automobiles, and several times more likely to be injured.
Not only that, but (for reasons described above) the percentage of motorcycle accidents which result in injuries is much higher than the percentage of car accidents. Some people can get in a minor car crash and walk away with no injuries, but almost all people who are in motorcycle accidents experience at least some sort of injury, and nearly half of these injuries are moderate or serious.
Most motorcycle accidents, around 75%, involve collisions with other vehicles. Of these accidents, around two-thirds, or 66%, involve a driver failing to yield the right-of-way to a motorcyclist. Such accidents frequently occur at intersections, where a driver turns left and hits a motorcyclist that was headed straight, and in traffic, when a car changes lanes and hits a motorcyclist in their blind spot.
Only around 25% of motorcycle accidents involve single-vehicle collisions. Collisions caused by potholes, bad weather, and similar factors are relatively rare, and only account for a few percent of all motorcycle accidents (although these factors still pose a significant threat to motorcyclists, and should not be underestimated). Road rage is also relatively rare as a cause of motorcyclist injury, although it does occur.
Motorcycle accidents can affect both the driver (the person operating the motorcycle) and the passengers (people riding on the motorcycle but not operating it). Passengers are the minority of motorcycle accident casualties; in 2015, only 433 of the motorcyclist deaths were passengers, while the other 4,359 were drivers.
Motorcycle accidents can happen anytime and anywhere, and affect anyone riding a motorcycle. However, there are a few clear risk factors which must be taken into account:
Gender. Men are far more likely than women to be affected by motorcycle accidents, and represent the vast majority of motorcyclist deaths (over 90%). Almost all men who are killed in motorcycle accidents are motorcycle drivers, but most women who are killed are passengers (and nearly all passenger deaths are women).
Age. Young men in their 20s are at the highest risk of dying in a motorcycle accident. However, they are not as large a fraction of motorcycle accidents as they once were; in fact, this age group represented fewer than a third of motorcycle fatalities, and middle aged motorcyclists (in their 40s and 50s) are increasingly likely to suffer fatal injuries.
Helmet Use. Motorcycle helmets are a clear benefit to motorcyclists’ safety; they reduce the risk of death in a motorcycle accident by over one-third (37%) and the risk of brain injury by over two-thirds (69%). Mandatory helmet laws do increase rates of helmet use, and therefore decrease motorcyclist injuries and fatalities.
Alcohol. Over a quarter of motorcyclists who were killed in 2015 had alcohol in their systems. This was a higher rate than that for car and truck drivers who were killed in accidents. Motorcyclists who are intoxicated are also less likely to wear helmets.
Motorcycle Size. In the past, smaller and sportier motorcycles (of the type that young men are most likely to buy) constituted the vast majority of motorcycle fatalities. They are still the majority, but the number of large motorcycle crashes has gone up. This trend seems to correlate with the increased rates of motorcycle ownership among middle-aged men, who tend to buy the larger models.
Time. The summer months are deadliest for motorcycle accidents, with July being the worst, and around half of motorcycle accidents occur in the afternoon. During the weekend, the 3-hour window period from 6pm to 9pm is the worst, while during the weekdays the mid afternoon period (3pm to 6pm) is the most deadly.
There are various parties which may be held liable for a motorcycle accident.
The first, and most obvious, party which may be held liable is the other driver involved in an accident. If a driver has caused harm to a motorcyclist, then the motorcyclist’s best option is to file a claim with the other driver’s insurance provider.
However, there are other parties which can be held liable, depending on the circumstances of the case. For instance, if the roads on which the accident happened were poorly designed or maintained, then the motorcyclist may sue the agency responsible for designing or maintaining the roads.
This is a common outcome in motorcycle accident lawsuits. Because motorcycles are so much more susceptible to dangers such as potholes and oil slicks than cars are, they are more likely to suffer as a result of road design or maintenance flaws. So even if you were a solo motorcyclist who crashed with no other cars involved, you might still have a case!
There are all sorts of ways in which a road can be poorly designed or maintained: it might have an uneven surface, debris, blind corners, poor or missing traffic signs or signals, faulty guardrails, or any number of other problems. Agencies which maintain roads, typically state and local governments, are responsible for removing as many of these dangers as reasonably possible.
Lawsuits against government agencies are sometimes hindered by the doctrine of sovereign immunity, which adds a few special caveats. For instance, the statute of limitations for lawsuits against a government agency is very short, typically around six months. So if you’re thinking of suing a government agency, don’t waste time!
Finally, if the crash was caused by a problem with the motorcycle itself, you may be able to file a lawsuit against the designer or manufacturer of the motorcycle. These lawsuits, too, are extremely common, because the risk factor with motorcycles is higher, and even a small design flaw could prove catastrophic in a motorcycle.
For instance, as we mentioned above, some motorcycles experience a wobble in the front wheel when the motorcycle is traveling at high rates of speed, and if this wobble is pronounced enough, it may lead to a crash. In this case, the party responsible for the product defect may be held liable.
Lawsuits involving defective motorcycles fall under the umbrella of products liability law, which has a completely different set of laws and legal precedents from car accident law. Defective motorcycles may also be the subject of recalls, either by the manufacturer or the federal government, and this too may have an impact on the success or failure of your lawsuit.
Motorcycle product liability lawsuits typically fall into two different categories: manufacturing flaws, which involve a problem with how the motorcycle was put together, and design flaws, which involve motorcycles which were manufactured as ordered but poorly designed. Some cases involve both, and a good motorcycle accident lawsuit will expand the scope to include as many relevant parties as possible.
If you are involved in a motorcycle accident, then your lawsuit may include any of these parties mentioned above. It may even include multiple parties, if several different entities worked together to bring about the circumstances of an accident.
In a motorcycle accident case, as in any accident case, fault is determined according to the standard of negligence. If you are the injured party, then you are the plaintiff, and it is your job to prove that the party who injured you (the defendant) was guilty of negligence.
There are four elements to a negligence lawsuit: duty, breach, harm, and causation. All drivers on the road, including motorcyclists and passenger car drivers, have the legal duty to drive safely, with respect for both written traffic law and for the basic safety of other road users.
If a motorist breaches their duty to drive with the care that a reasonable person would, and this duty is the direct cause of some appreciable injury or harm to another party, then the motorist may be held liable for damages.
In some cases, the plaintiff must prove that the defendant’s conduct was not that of a “reasonable person.” This can be a somewhat abstract standard, although there is significant legal precedent defining what constitutes reasonable driving.
In other cases, negligence is easier to prove; the plaintiff must simply demonstrate that the defendant broke a traffic law (such as running a stop sign or red light). This is known as negligence per se.
Motorcyclists are expected to follow the rules of the road no less than passenger car drivers. If a motorcyclist was negligent, and their negligence was the sole cause of a crash, then the motorcyclist will not be eligible to collect any damages in a personal injury lawsuit.
In fact, if the motorcyclist causes harm to another party through their negligence, then they may even be forced to pay damages to the other party. Generally, motorcyclists can’t do as much harm to passenger car drivers as drivers can do to motorcyclists, so this isn’t the most common outcome, but it does happen, so drive carefully!
In some cases, a personal injury lawsuit goes beyond mere negligence. This occurs in extreme cases, where the defendant’s behavior was so egregious, and so lacking in regard for the safety of others, that they are instead charged with recklessness. Recklessness may include actions such as driving far above the speed limit, street racing, and fleeing police.
Reckless driving can cause a lot of damage, especially to motorcyclists. The silver lining to this cloud is that if you were a victim of recklessness, you may be entitled to an extremely high level of damages! Be sure to consult motorcycle accident lawyers on these matters, because they will be able to piece together the details and determine whether or not you have a case.
What if both the motorcyclist and the driver (or other party involved in the crash) were partially at fault? After all, car accidents aren’t always clean-cut things. Sometimes there are several factors involved, and both parties were negligent to some degree.
When this happens, it is still possible for you as a motorcyclist to recover damages, but they will likely be decreased according to the rules of comparative negligence. Comparative negligence is a legal standard by which individuals who are partly responsible for an accident are eligible to receive damages at a diminished rate, relative to the degree to which they were at fault.
For instance, let’s say you were in a motorcycle accident. A driver hit you while making an unsafe left turn, but you also contributed to the accident (perhaps by speeding). In this case, it may be determined that the driver was 80% at fault for the accident, and you were 20% at fault.
Under a comparative negligence standard, motorcycle accident lawyers explain that you will then be eligible to collect 80% of the damages to which you would have otherwise been entitled. For instance, if you would have been eligible to recover $1 million otherwise, you will only be able to recover $800,000.
Comparative negligence might seem harsh, but in fact, it’s much better than the alternative. The traditional standard for determining damages in an accident case relied on contributory negligence. Under this standard, if the plaintiff is even 1% at fault, they have no right to recover any damages at all.
Fortunately, strict contributory negligence has been replaced by some form of comparative negligence standard in nearly all states. And this is a good thing: even if you were partly at fault as a motorcyclist, you will still be eligible to file a lawsuit, and you stand a good chance of receiving a respectable settlement or judgment in your favor.
Don’t assume that just because you made a mistake, you don’t have a case! Let us be the judges of that.
As with other types of accidents, there are a few different types of damages that you are allowed to collect in a motorcycle accident lawsuit.
The three different types of damages are:
Of course, the types of damages which you are eligible to collect will vary significantly based on the precise nature of your case and the quality of legal representation which you have.
Immediately after a motorcycle accident, there are a set of steps which you should take. Some of these steps are required by law, while others are not required but are nonetheless highly advisable. These steps are much the same as those which you should take in any other type of accident, so many of them will likely be familiar to you.
First and foremost, you should make sure that you are safe. Get out of the road, and out of the path of other cars and motor vehicles. Once you are away from immediate danger, you should check yourself for injuries and call 911, even if you do not seem to be severely injured. Adrenaline can hide the severity of your injuries after an accident, and some types of accident injuries frequently have delayed symptoms.
Next, you should stop and exchange information with the driver of the other vehicle, if another vehicle was involved. If you don’t do this, then you’ll be guilty of hit-and-run! Exchange your name, contact information, license, and insurance information… but other than that, don’t say too much else to the other driver! Don’t apologize (this can be taken as an admission of guilt) but don’t get angry and do anything stupid, either.
Sometimes, unfortunately, drivers do leave the scene of an accident after hitting a motorcyclist. If this happens, you should still report the accident to the police and do everything you can to find the hit-and-run driver. Get as detailed a description as possible, including make, model, and color of the car, license plate, a description of the driver if possible, and any identifying features, including damage done by the crash. You should also try to get a hold of any security cameras that were in the area.
Once you have ensured that you are safe and all the legal requirements are fulfilled, then you should begin to collect evidence. Some of this can be done at the scene. Talk to any other witnesses and get their contact information, and take pictures of the accident, if possible. Keep your motorcycle, helmet, and clothing, if any damage has been done to any of these. Take some draft notes as soon as you can about how the accident happened.
Other evidence can be collected later. Even if you are not hospitalized, you should see a doctor as soon as possible after the accident. This is important for your health, but also for legal protection. Seeing a doctor helps you provide proof that you were hurt. Save all your medical bills and your bills for damaged property, and also keep a journal of all the ways in which your injuries interfere with your life; this last part will help you collect non-economic damages for pain and suffering.
After calling 911, the police will respond to the scene of the accident. They will take down notes on what happened, and later compile these notes into a police accident report. Accident reports can be very helpful in a personal injury case; they typically have an assessment of fault, and this may differ from that of the insurance companies. That’s why you should order a copy of your police report, and add a correction if there are any mistakes.
So, that’s what you should do after an accident.
Here’s what you shouldn’t do: don’t talk to the other party’s insurance or lawyers without a motorcycle accident attorney present! These people are experts at getting people like you to say careless things that will hurt your case. They have decades of experience doing this, and no matter how savvy you are, you aren’t a match for them. So don’t give any statements, don’t sign anything, and don’t agree to any “lowball offers” which might seem generous at first. They probably wouldn’t be making those offers if they weren’t afraid that you could get a lot more.
Instead, you should hire a strong, competent personal injury attorney to take your case for you. The deck is stacked against motorcyclists, but it doesn’t have to be that way. With the right legal representation, there is no reason why you shouldn’t get everything you deserve after a motorcycle accident. Hiring a lawyer will also allow you to focus on recovering from your injuries full-time, without the added stresses of filling out paperwork and talking to slippery insurance adjusters.
TorkLaw‘s attorneys have extensive experience in dealing with motorcycle accidents. We have won significant judgments and settlements for our motorcyclist clients against all odds, and we are passionate about leveling the playing field and ensuring that motorcyclists get the justice they deserve. If you have been injured in a motorcycle accident, we would like to hear your story.
For more information on motorcycle accidents, check out Reza’s book Accidents Happen: A Consumer’s Guide to the Personal Injury and Wrongful Death System. The book has an entire chapter devoted to motorcycle accidents, and if you live in California, we will allow you to order a free copy.