Motorcycle Crash Injuries: Overcoming the Bias Against Riders

Published June 7, 2011 · Injury Law Basics

Riding season is here, and with it comes a conversation I have had with too many injured riders and their families. A motorcyclist is heading north on Route 48 through Centerville with the right of way. A driver waiting to turn left looks, does not see the bike, and turns. The rider has no time and nowhere to go. In the emergency room, the first question from the other driver's insurer is not "how is he?" It is "how fast was he going?"

That question is the bias in a sentence. This post is about where the bias comes from, what Ohio law actually says, and how a rider's case is built to beat it.

The assumption riders face

Many adjusters, and some jurors, begin from an unspoken premise: motorcycles are dangerous, the people who ride them know it, and therefore the rider must have been doing something reckless. Speed, lane position, no helmet, loud pipes, a leather jacket. Any of these can become the story of the crash before the facts are in.

The premise is wrong far more often than it is right. In the crashes we see, the most common scenario by a wide margin is a car or truck turning left across the path of a motorcycle, or changing lanes into a rider, while the rider is traveling lawfully with the right of way. The driver's explanation is almost always the same: "I never saw him."

"I never saw him" is not a defense. It is a confession.

What Ohio law says about the left turn

Ohio's traffic code is clear on this. R.C. 4511.42(A) requires a driver "intending to turn to the left within an intersection or into an alley, private road, or driveway" to yield the right of way to any vehicle approaching from the opposite direction that is close enough to be "an immediate hazard."

A motorcycle is a vehicle. A rider approaching an intersection in his own lane has the right of way over a driver turning left across it. A driver who turns anyway and causes a crash has violated the statute. As we explained in our post on a Dayton motorcycle verdict last year, violating a specific safety statute like this one is negligence per se: the violation establishes the driver's fault without any debate over what a reasonable person would have done.

The same logic applies to the driver who rear-ends a motorcycle stopped in traffic. Ohio's assured-clear-distance rule, R.C. 4511.21(A), requires every driver to be able to stop within the visible space ahead. We covered that rule in detail in our post on rear-end collisions. A motorcycle stopped at a light is a discernible object in the lane, and the driver who hits it was going too fast for conditions.

Comparative fault: the insurer's real strategy

Because fault is often clear under these statutes, the insurer's goal in a motorcycle case is usually not to win on liability but to shave the recovery. Ohio's comparative negligence law reduces an injured person's recovery by their percentage of fault, and bars recovery entirely if the injured person is found more than half at fault. We explained how that works in our post on comparative negligence.

So the adjuster will argue that the rider was speeding, that he could have braked sooner, that he was in the wrong part of the lane, that his headlight was off, that he was not wearing bright clothing. Each argument is aimed at convincing a jury that the rider was 20 or 30 percent to blame, which on a serious injury can mean hundreds of thousands of dollars.

These arguments are beaten with evidence, and the evidence has a short shelf life.

Building the case in the first days

In a motorcycle case, I want an investigator at the scene within days, not months. Here is why:

• Sight lines. The left-turning driver's claim that he "couldn't see" is tested by photographing and measuring the intersection from the driver's seat at the same time of day. Parked cars, signs, and vegetation move or change.
• Witnesses. Independent witnesses who saw the rider traveling normally, and the driver turn without stopping, are the single most powerful answer to the speed accusation. They must be found and interviewed while they remember.
• Physical evidence. Skid marks, gouge marks, debris fields, and the final resting positions of the vehicles allow a reconstructionist to calculate speed and impact angle. Rain and traffic erase them.
• Vehicle damage. The crush damage on the car and the bike shows where the impact occurred and from what direction, which can prove the rider was in his lane.
• The driver's phone. If there is any suggestion of distraction, the records need to be requested before they are gone.
• The police report. Officers, in my experience, do a conscientious job, but a report written at a chaotic scene while the rider is on the way to the hospital often reflects only the driver's account. It is a starting point, not the final word.

Injuries, insurance, and why UM/UIM is the rider's lifeline

Motorcycle injuries are severe by nature. There is no steel around the rider. Fractures of the legs and pelvis, traumatic brain injury, spinal injury, road-rash requiring grafts, and amputation are common. The medical bills and lost earnings in a serious motorcycle case routinely exceed the at-fault driver's policy limits, and Ohio's minimum liability limits are low.

That makes the rider's own uninsured and underinsured motorist coverage the most important document in the file. UIM coverage steps in when the at-fault driver's limits are not enough to compensate the injury. Riders should carry as much of it as they can afford, on the bike policy and on their auto policies, and should check whether the policies on their household vehicles extend to them while riding. If you own a motorcycle and have not looked at this coverage, do it this week.

What this means for you

• You had the right of way. Do not let anyone talk you into accepting blame because you were on a motorcycle.
• Get the names and numbers of every witness before leaving the scene, or have someone do it for you if you are being transported.
• Do not give a recorded statement to the other driver's insurer. Questions about speed and lane position are designed to build the comparative-fault argument.
• Preserve the bike. Do not let it be scrapped or repaired until it has been photographed and inspected.
• Call a lawyer who understands riders, fast. The evidence that proves the driver did not look disappears first.