Because cycling alongside moving traffic is inherently dangerous, it’s advisable to don a helmet before doing so. That does not mean, however, that people who opt to forgo head protection and end up sustaining a traumatic brain injury (TBI) are barred from recovering compensation.
If you were struck by a drunk, distracted, or otherwise negligent motorist while cycling without a helmet and you sustained a TBI in the process, you may still file a claim. Whether it will actually yield a payout, though, will depend on the circumstances.
Under New York’s pure comparative fault rule, the defendant’s liability is offset by the plaintiff’s own liability. If the defendant can prove that your injury and the resulting damages would not be as severe had you been wearing a helmet, they may be able to shift at least a percentage of fault to you.
There are a number of strategies your attorney can use to counter the comparative negligence defense. Even if you were not wearing a helmet, you should still schedule a free consultation with a lawyer to discuss your options.
How Can I Strengthen My Brain Injury Claim If I Wasn’t Wearing a Helmet?
After evaluating the situation, a strategic brain injury attorney can help you gather the evidence needed to strengthen your claim. Such evidence may include:
- Dash cam footage of the accident;
- The official police report;
- Toxicology reports;
- Cell phone records;
- Eyewitness deposition;
- Deposition from accident reconstruction experts;
- Diagnostic images; and
- Other medical records.
Your lawyer may also consult with various medical specialists such as neurologists, psychologists, and physiatrists when building your case. These experts can provide deposition regarding whether a standard bike helmet would have actually reduced the severity of your injury and its associated symptoms.
There are a number of studies that might be referenced to bolster your case. In one study, for example, helmets appeared to reduce the risk of head injury by between 63 and 88 percent. While such statistics are promising, they highlight the fact even CPSC-certified bicycle helmets are not foolproof.
Seeking prompt medical care and following your doctor’s orders will also contribute to the strength of your case. Living with TBI can be challenging and typically calls for ongoing treatment.
Regardless of how busy you are, make sure to attend all follow-up appointments and rehabilitative sessions. Otherwise, the defense may assert that you have failed to mitigate damages, which is another way to shift liability to you.
Speak with a Long Island Bicycle Accident Attorney Today
If you sustained a traumatic brain injury in a bicycle accident, turn to WeitzPascale to determine the most strategic way to proceed. Our law firm has earned a 10.0 rating from Avvo and an AV-Preeminent rating from Martindale-Hubbell.
We will use cutting-edge technology, first-rate experts, and proven legal strategies to represent your best interests while helping you pursue the compensation you need to move on with life. Call 516-280-4716 or use our Online Contact Form to set up a free consultation with a bicycle accident lawyer in Long Island.