The Effect of not wearing a helmet on a Motorcycle Accident Case

The Helmet Use Law and How it affects a Motorcycle Accident Case

Author: Michael Rehm

Under California Vehicle Code Section § 27803 (see statute below article) helmet use is mandatory regardless of the age of the motorcyclist. Every state is different in regards to their helmet laws. The overwhelming majority of states are “mandatory states” meaning no matter the age of the motorcyclist wearing a helmet is mandatory. A small percentage of states are permissive use states meaning helmet use is mandatory but only until a certain age, with different age limits for different states. Some states have no laws on the books. This is well-established. The issue that isn’t considered as much is the failure to wear a helmet and what effect that could have on your personal injury case. The general rule of thumb is you take the plaintiff (victim) as you find them. We, meaning me and you, are under no duty to anticipate the negligence of another. Therefore, the question becomes can the lack of the motorcyclist wearing a helmet, whether in a mandatory, permissive or no rule state, be used against the motorcyclists in a personal injury case. In other words, can the defense in these cases argue that the damages would not have been as significant if the motorcyclist was wearing a helmet.

Currently there are two views on the subject. There is the majority view which is the traditional view in the law of torts, a defendant takes the plaintiff as they find them. This majority view is articulated in the case of Meyer v. City of Des Moines, 475 N.W.2d 181 (Iowa 1991). There is a minority view, and the minority view is that even if the helmet is not legally required that the damages may be reduced if the helmet would have avoided the injury. The minority view requires the damages may be reduced, not necessarily taken away. Therefore, in a situation where a helmet was not worn, and the defense argues that the helmet would’ve avoided the injury, it is important to make clear to the court or the jury that the lack of a helmet can be taken into consideration as to the damages amount, but does not absolve the tortfeasor/defendant of liability in the first place.

In those rare circumstances where it can be shown that a helmet would have avoided injury to the head, with sufficient specificity as to how that would have occurred, the motorcycle accident attorney needs to emphasize that the incident, in and of itself, would not have occurred if not for the negligence of the defendant. The fact that one is not wearing a helmet does not give another a right to injure that person. The other party should not be absolved of liability simply because you’re not wearing a helmet, particularly in a state that does not require it. It is a very difficult task to determine with specificity that the helmet would have precluded the specific injury complained of. Therefore, plaintiffs’ counsel should vehemently argue against any minority view instruction being read to the jury.

On the other hand, in majority jurisdictions, plaintiffs’ counsel should emphasize to the court or the jury that the failure to wear a helmet cannot be used against the plaintiff in any reduction of damages. Understanding the law on this subject can greatly benefit the plaintiff in court either in front of a judge or jury, but also greatly benefits the plaintiff in negotiations with the insurance company, who might not be aware of the nuances of the helmet use law, and how it relates to a San Francisco Motorcycle Accident case.


California Vehicle Code 27803:

(a) A driver and any passenger shall wear a safety helmet
meeting requirements established pursuant to Section 27802 when
riding on a motorcycle, motor-driven cycle, or motorized bicycle.
   (b) It is unlawful to operate a motorcycle, motor-driven cycle, or
motorized bicycle if the driver or any passenger is not wearing a
safety helmet as required by subdivision (a).
   (c) It is unlawful to ride as a passenger on a motorcycle,
motor-driven cycles, or motorized bicycle if the driver or any
passenger is not wearing a safety helmet as required by subdivision
   (d) This section applies to persons who are riding on motorcycles,
motor-driven cycles, or motorized bicycles operated on the highways.
   (e) For the purposes of this section, "wear a safety helmet" or
"wearing a safety helmet" means having a safety helmet meeting the
requirements of Section 27802 on the person's head that is fastened
with the helmet straps and that is of a size that fits the wearing
person's head securely without excessive lateral or vertical
   (f) This section does not apply to a person operating, or riding
as a passenger in, a fully enclosed three-wheeled motor vehicle that
is not less than seven feet in length and not less than four feet in
width, and has an unladen weight of 900 pounds or more, if the
vehicle meets or exceeds all of the requirements of this code, the
Federal Motor Vehicle Safety Standards, and the rules and regulations
adopted by the United States Department of Transportation and the
National Highway Traffic Safety Administration.
   (g) In enacting this section, it is the intent of the Legislature
to ensure that all persons are provided with an additional safety
benefit while operating or riding a motorcycle, motor-driven cycle,
or motorized bicycle.

San Francisco Motorcycle Accident Attorney

Welcome to the San Francisco Motorcycle Accident Attorney blog. Michael Rehm Law provides representation on all motorcycle accident cases in San Francisco and throughout the Bay Area. Motorcycle accidents are unique to other vehicle accidents in many ways. Generally the injuries can be more severe due to the lack of the motorcyclist being enclosed within the vehicle. Motorcyclist also face a more skeptical eye from insurance companies and others within the court system, since many uninformed citizens view riding a motorcycle as an inherently dangerous activity, which study after study shows is not the case, at least when the rider is experienced and not breaking the law. The information and viewpoints on this blog are strictly the authors opinion on the law and should not be taken as legal advice, since the law constantly changes and interpretations on the law differ from one court to another. If you have been injured in a motorcycle accident and desire a free consultation or more information on what you can do from here, feel free to contact Michael D. Rehm Law at (415) 230-2346.