A car makes a left turn in front of you, and you try to miss it but your bike – and your head – slams into their driver’s side door. The other driver is clearly at fault, but… can you sue for head injuries if you weren’t wearing a helmet?

The insurance adjuster for the other driver would like you to think that you can’t sue and that your injuries are your own fault for not wearing a helmet. Then again, the insurance adjuster will do everything possible to deny your claim or to pay the least amount possible.

If you weren’t wearing a helmet when a car crashed into you, some states would limit your recovery based on a theory of “comparative negligence” or “assumption of the risk.”

Not South Carolina.

Below, I’ll explain why you are entitled to full and fair compensation after a motorcycle collision caused by another driver, even if you were not wearing a helmet at the time of the crash.

Comparative Negligence in SC if You Were Not Wearing a Helmet

South Carolina follows a “modified comparative negligence rule.” This means that you can sue for damages even if you were partially at fault. But, if you were more than 50% at fault in a collision, you recover nothing.

If you were less than 50% at fault in the crash, you can still recover damages, but your recovery will be reduced by the percentage that the jurors find that you were at fault. How does this affect your case if you suffer head injuries in a motorcycle collision and you were not wearing a helmet?

It doesn’t unless you were under the age of 21.

SC Code Section 56-5-3660 requires every person under the age of 21 to wear a helmet, but there is no requirement for people 21 years of age or older to wear a helmet in SC. Because there is no statutory duty, not wearing a helmet is not negligence under SC law and therefore it is not comparative negligence that would reduce or bar your recovery.

In Mayes v. Paxton, the SC Supreme Court held that not wearing a helmet in SC is not contributory negligence (the current rule is comparative negligence but the analysis is the same):

We also find that Mayes’ failure to wear a helmet does not constitute contributory negligence. It is undisputed that Mayes had no statutory duty to wear a helmet at the time of the accident. Although S.C.Code Ann. § 56-5-3660 (1991) requires the use of a helmet by motorcycle operators and passengers under the age of twenty-one, Mayes was excluded from that duty because he was more than twenty-one years old when the accident occurred. In light of the fact that the Legislature has enacted a statute requiring the use of helmets and has specifically elected not to extend that requirement to motorcyclists twenty-one or older, we decline to create a judicial penalty for those exempted from the statutory duty.

Failure to wear a helmet in SC is not negligence, it is not comparative negligence, and it is not something that insurance defense lawyers can argue in court or that insurance adjusters can use to deny or limit your claim.

Assumption of the Risk in SC if You Were Not Wearing a Helmet

Assumption of the risk is another legal principle that insurance defense attorneys may attempt to use in some states to deny a claim involving head injuries when the rider was not wearing a helmet – it does not apply in SC.

The SC Supreme Court also shot down this argument in Mayes v. Paxton:

The defense of assumption of the risk applies where the plaintiff assumes a risk of harm arising from the defendant’s negligent or reckless conduct. Hoeffner v. The Citadel, ___ S.C. ___, ___, 429 S.E.2d 190, 193 (1993) (citing Restatement (Second) of Torts § 496A (1965)). In the absence of express consent to assume the risk, the plaintiff’s conduct can be said to imply assumption of the risk where it is shown that he understood and appreciated a known danger created by the defendant, and then freely and voluntarily exposed himself to it. Id. As a matter of law, we find that a motorcyclist’s decision to ride without a helmet does not imply his consent that motorists are relieved of the duty to use reasonable care toward him.

Assumption of the risk may apply in other types of cases where 1) there is known risk of injury and 2) the plaintiff voluntarily “assumed the risk” by participating in the activity anyway.

Assumption of the risk often applies to inherently dangerous activities like skydiving, paragliding, or scuba diving, and it often involves a written waiver by the participant of lawsuits related to the inherent danger of the activity. Even in these cases, however, it may not excuse a company or employee’s negligence that causes injury or death.

You don’t “assume the risk” of a head injury caused by another driver’s negligence, just as you don’t assume the risk of injury due to someone else’s negligence by driving a car, flying on an airplane, riding on a ferry, walking down the street, or engaging in any sort of legal activity that could be dangerous.

If you were not wearing a helmet and you suffered head injuries caused by another driver’s carelessness or recklessness on the highway, you are entitled to full compensation from that driver or their insurance company.

Motorcycle Crash Lawyers in Charleston, SC

The motorcycle crash attorneys at the Boles Law Firm can help you to investigate your crash, gather the evidence you will need in court, negotiate with the insurance companies, and recover the maximum compensation that you are entitled to for your injuries – whether you were wearing a helmet or not.

Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website.

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