By: Glenn C. McGovern, Attorney at Law
Metairie, La.

Motorcycle riding has become more popular in recent years. It is appealing to groups of enthusiasts, who are now older and more affluent riders who can afford to buy the most sophisticated motorcycles. Sales of all types of two-wheeled motorcycles totaled over 1 million in 2008, but fell about 41 percent in 2009 due to the economic woes in the U.S. There were approximately 7.1 million motorcycles on the road in 2007, according to the U.S. Department of Transportation. At the same time motorcycle fatalities have also been climbing, reaching 5,290 in 2008, the highest level since the Department of Transportation began collecting data in 1975. There has been a dramatic jump in the number of deaths among motorcyclists age 40 and older in recent years.

THE HIGH FATALITY RATE IS CLIMBING

Even the Pentagon is concerned about the increase in motorcycle accidents. More U.S. servicemen have died in motorcycle accidents than in the war operations in Afghanistan. In an article published by Nicholas Wapshott in the N.Y. Times and reprinted in the Montreal Gazette, Sunday, Feb. 19, 2006, stated more U.S. servicemen have died in motorcycle accidents on home soil since Sept. 11, 2001, than in operations in Afghanistan. The Pentagon, which disclosed the statistics, blamed the crashes on personnel seeking to recreate the thrill of battle by clambering aboard a high-speed machine and heading out onto U.S. freeways. The crashes have claimed 350 soldiers' lives, compared with 259 fatalities in Operation Enduring Freedom, the campaign to bring stability to Afghanistan after the removal of the Taliban. The U.S. military is so alarmed at the rising number of deaths that it has ordered soldiers to take motorcycle safety courses and inspections at military bases.

It is clear that motorcycles have a higher fatality rate per unit of distance traveled when compared to automobiles. According to the National Highway Traffic Safety Administration (NHTSA), in 2006, 18.06 cars out of 100,000 ended up in fatal crashes. The rate for motorcycles if 55.82 per 100,000¹.

One of the main reasons motorcyclists are killed in crashes is because the motorcycle itself provides virtually no protection in a crash. For example, approximately 80 percent of reported motorcycle crashes result in injury or death; a comparable figure for automobiles is about 20 percent.²

The only reliable independent major study done on motorcycle safety in the USA is the Hurt Report, published in 1981 with data collected in Los Angeles and surrounding rural areas³.

The Hurt Report concluded with a list of 55 findings, as well s several major recommendations for law enforcement and legislation. Among these, 75% of motorcycle accidents involved collision with another vehicle, usually a car. In the MAIDS report, a good statistical study done in the U.K. the figure is 60%.

Other notable findings in the Hurt Report (quoted below) were:⁴

• “75% of accidents were found to involve a motorcycle and a passenger vehicle, while the remaining 25% of accidents were single motorcycle accidents”.
• "In the single vehicle accidents, motorcycle rider error was present as the accident precipitating factor in about two-thirds of the cases, with the typical error being a slide-out and fall due to over braking or running wide on a curve due to excess speed or under-cornering."
• "Almost half of the fatal accidents show alcohol involvement" and "injury severity increases with speed, alcohol involvement and motorcycle size."
• In the multiple vehicle accidents, the driver of the other vehicle violated the motorcycle right-of-way and caused the accident in two-thirds of those accidents.
• The report's additional findings show that the wearing of appropriate gear, specifically, helmets and durable garment, mitigates crash injuries substantially.
• "Vehicle failure accounted for less than 3% of these motorcycle accidents, and most of those were single vehicle accidents where control was lost due to a "puncture flat" and "Weather is not a factor in 98% of motorcycle accidents."
• The failure of motorists to detect and recognize motorcycles in traffic is the predominating cause of motorcycle accidents . . . Conspicuity of the motorcycle is a critical factor in the multiple vehicle accidents, and accident involvement significantly reduced by the use of motorcycle headlamps-on In daylight and the wearing of high visibility yellow, orange or bright red jackets."

TYPES OF INJURIES CAUSED BY MOTORCYCLE ACCIDENTS

The damages are large in these cases. Many are fatal. Once the collision has occurred, or the rider has lost control through some other mishap, several common types of injury occur when the bike falls:

• Collision with less forgiving protective barriers, or badly placed roadside "furniture" (lampposts, signs, fences, etc.) This is often simply a result of poor road design, and can be engineered out of a large degree. Note that when one falls off a motorcycle in the middle of a curve, lamps and signs create a "wall" of sorts with little chance to avoid slamming against a pole.
• Concussion and brain damages, as the head violently contacts other vehicles or objects. Riders wearing an approved helmet reduce the risk of death by 37 percent.⁵
• Breakage of joints (elbows, shoulders, hips, knees and wrists), fingers, spine and neck, for the same reason. The most common breakages are the shoulder and the pelvis.
• Soft tissue (skin and muscle) damage (road rash) as the body slides across the surface. This can be prevented entirely with the proper use of motorcycle-specific apparel such as a leather jacket or reinforced denim and textile pants.
• There is also a condition known as biker's arm, where the nerves in the upper arm are damaged during the fall, causing a permanent paralysis of arm movement.
• Facial disfigurement, if in the absence of a full-face helmet, the unprotected face slides across the ground or smashes into an object. Thirty-five percent of all crashes show major impact on the chin-bar area.⁶
• Spinal injuries of riders without Leatt Braces or neck protection are common.

SAFETY EQUIPMENT AND POINTING TO ITS USE BY THE PLAINTIFF IS IMPORTANT TO WIN YOUR CASE

Motorcyclists can use personal protection equipment (PPE or "motorcycle gear") to reduce injuries. PPE can also improve the visibility for the use of retro-reflective strips and bright colors. Such PPE gear offers abrasion resistance, impact protection and weather protection. The use of such gear is important to show the rider was not reckless and unsafe to the jury. Previous training, experience, certifications, drivers license endorsements, that he/she was legally operating the motorcycle on the street and safe condition of the motorcycle all need to be discussed to overcome the bias against the motorcyclist rider/plaintiff.

Handling motorcycle litigation cases is vastly different than automobile accident cases. One of the tactics that defendants will use in these cases is to take the deposition of the motorcycle rider to make him/her feel guilty for the accident and work thru that guilt to get admissions. This is a tactic that often works, unless the client is prepared to counteract this. For this reason, it is important that you go through deposition preparation completely with the client all facets of the accident and talk about any subconscious guilt that he may or feel about the accident. It is important to pre-screen the case. Remind the client he did no wrong and you would not have taken the case unless liability was clearly not the fault of the rider/plaintiff. There will always be implied accusations of fault by defense counsel for a motorcycle rider, involved in an accident for simply being on the motorcycle. To counteract this, the client should be fully prepared. Several lengthy discussions should be held with the motorcycle rider. You should go over all the events that happened that day and his previous history of motorcycle riding. All the many measures the rider took to avoid any accident must be pointed out to the jury to make sure they know the motorcycle rider/plaintiff is a responsible person and did not act in a reckless manner. Most of the cases you accept will be those that the driver of the automobile never saw the motorcyclist. The focus needs to be that sole cause of the accident was not the motorcycle rider, but that the automobile driver failed to see the motorcycle driver.

How do you shift blame from the fact a motorcycle was involved? You should go through in front of the jury all the items and actions that the rider took to insure a safe ride and minimize risks, including:

1. He/she was a licensed motorcycle driver with an endorsement;
2. Bring out if he/she passed a MSF Motorcycle Safety Foundation course or any other courses regarding motorcycle rider safety.
3. The rider wore a full-face helmet, and type of helmet he wore, to make a point that he wore the best helmet possible to reduce risk of injury including jacket, the clothing worn, which can be made from leather or other synthetics to reduce the risk of injury; that he wore protective pants to reduce injury to his knees and hips; boots, type of boots and how they offered protection; goggles or helmet visor, to prevent eye injury; vests made with high-visibility colors and retroflective materials, vests can be wore over jackets; other PPE - Some bikers wear plastic armors inside of their clothes or outside of their clothes to protect them from further injury.
4. Also, point out the driver of the motorcycle was acting in a responsible manner. Point out the following:
   1. He/she doesn't ride with his/her small children on the bike;
   2. Whether he/she chooses to ride at night or only in the day;
   3. Whether he/she rides in good weather or dry weather, rainy weather;
   4. The lack of tickets received for dangerous operation;
   5. The lack of previous accidents;
   6. The use of headlights being on during operation and taillight being on in accordance to state and local laws.
   7. That he/she complied with all state and local laws regarding the operation of his/her motorcycle and was not speeding.
   8. That he/she had the motorcycle inspected and was approved for operation on the street.
   9. The motorcycle was well maintained and in good operational condition, and was safe to operate.
   10. That he/she was compliant with the speed limit and all traffic laws.
   11. All the safety measures he/she took before the ride.
   12. The rider was not under the influence of drugs or alcohol.
   13. The motorcycle was in excellent condition and checked often before rides.
   14. The good health of the rider and lack of drugs or alcohol in the rider’s system.
   15. The lights are automatically on when started to alert motorists.
   16. Conspicuous clothing was worn with reflective tape or markings to alert motorists.
   17. Citations were issued to the offending driver.

It is very important for the attorney handling motorcycle cases understand motorcycles, motorcycle protective gear, what is involved in safe motorcycle operations and how the rider tried to minimized the risks. Then the attorney can use this information to go through with the motorcycle rider/plaintiff, (i.e. to go off code of the stereotype of a “risk-taking motorcycle rider”) that he is not a reckless person, but is a safety conscious rider who operates a motorcycle in a safe manner with pre-planning and did everything to reduce his risk of injuries. Then you go off code with the automobile driver making the driver from “safe automobile driver” to “reckless automobile driver and a threat to all motorists”. I have had cases of an elderly driver with defective vision that killed a college student on a motorcycle at a stop sign, a drunk SUV driver that tore a leg of the rider off, a left turn into a motorcycle accident while a driver talked on cell phone or one eating a Whopper hamburger which splattered on the windshield on impact. Records of these negligent acts must be researched and documented for trial. These facts will deflect the bias against your motorcycle rider. It will then be easier to prove and convince the jury that he was not at fault as the motorcycle operator, but it was solely the fault of the motor vehicle operator who endangered others by his actions. By far the majority cases I have handled the motorist is responsible for the accident for failing to see the operator of the motorcycle.

LOOK FOR POSSIBLE PRODUCT LIABILITY DEFECTS IN EQUIPMENT

It is important to inspect the motorcycle and scene soon after a crash to be aware of any product liability claims that may have come into play. Often the rider’s damages are larger than the offending motorist’s insurance limits. Often riders unknowingly install equipment on their motorcycle that sometimes make the motorcycle unsafe. For example, the light and blinkers on the motorcycle should be SAE, FHA and DOT approved. SAE or DOT letters should be stamped on the glass lenses of the lights, and if they are not, they are not safe to use on the street. If the lack of visibility of the motorcyclist is at issue, there may be a cause of action against the manufacturer of the lights for defects in design and/or failure to warn.

Also, always retain all equipment and inspect it. Most helmets are SNELL and DOT approved. However, just because a helmet is DOT or Snell M2010DOT approved does not mean necessarily it is as safe as other helmets. Helmets can vary in prices from $100 to $900. Good higher end helmets (i.e. Shoei, Aria) are $575 plus in costs. They are hand made of composites of multiple composite layers of energy absorbing materials in its construction. They are not popped out of mold in China for $2.00 a shell costs. These higher end helmets are generally more effective in preventing head injuries. At the low end of the price range helmets, these often fail due to defective chin straps and defects in the construction and composition, which allow the helmet to open up and exposing part of the skull. This can result in catastrophic damages and death. I have seen one brand of helmets crack open resulting in three fatalities. (I personally had an inexpensive helmet failure in a minor crash decades ago but survived without major injury. I learned from that. I always wear a Shoei helmet since. I damaged a Shoei and Leatt brace in a bad crash off a jump at Namur, Belgium, in the motocross FIM MX Veterans World Championships in 2007 but escaped serious injury. I have no doubt those high-end safety devices are totally responsible for saving me from serious injury.)

EXAMINATION OF THE ACCIDENT SCENE AND VEHICLES INVOLVED

It is important that the accident scene be visited and photographed by the attorney and an accident reconstruction expert if necessary. All possible defects in the offending automobile, driver, road, and motorcycle are to be documented, which can increase the chance of recovery. Photograph and videotape the scene, vehicles and rider’s injuries as soon as possible. Look for road defects also.

CONCLUSION

Motorcycle accidents are a real challenge but with knowledge, skill and preparation can lead to a successful result for the client and attorney. The attorney faces the challenge of educating himself to the specialized, interesting world of motorcycle accidents before facing the challenge of successfully presenting a motorcycle case to a jury.

¹NHTSA: Motorcycles Traffic Safety Fact Sheet (DOT-HS-810-990)

²"Motorcycle Safety" NHTSA (http://www/nhtsa.dot.gov/people/injury/pedbimot/motorcyle/motosafety.html).

³Hough, David L. (2000) Proficient Motorcycling: The Ultimate Guide to Riding Well.

⁴Dr. Hugh H. Hurt, PhD. (January 1981 (Final Report). Motorcycle Accident Cause Factors and Identification of Countermeasures, Volume 1: Technical Report, Hurt, H.H., Ouellet, J.V. and Thom, D.R., Traffic Safety Center, University of Southern California, Los Angeles, California 90007, Contract No. DOT HS-5-01160

⁵Wald, Matthew (12 September 2007). "Rise in Motorcycle Deaths Renews Helmet Law Debate".

⁶Otte, Dietmar. "COST 327 Motorcycle Safety Helmets".(5 April 2010).