Your mother was right: Motorcycles are dangerous, even if you wear a helmet. This danger, however, has failed to blunt the enduring popularity of motorcycle riding. Upstate New York, for example, attracts riders from all over the nation, and sometimes from all over the world. Unfortunately, some of these riders end up in the hospital, and a few even end up in the morgue. When someone else is at fault, justice demands a response.
The Tale of the Numbers
The state of New York sees nearly 150 motorcyclist deaths per year, along with over 1,500 inpatient hospitalizations and almost 4,500 emergency room visits. These rates were highest among males aged 20 to 24, which is also the demographic that is least likely to wear a helmet. Motorcycle accidents, more than other types of accidents, are likely to have been caused by the other party to the accident (an automobile driver, for example).
The Most Common Causes of New York Motorcycle Accidents
The following is a list of some of the most common causes of motorcycle accidents in New York:
- Lane splitting: Lane splitting occurs when a motorcycle tries to pass, by riding between cars. Although lane-splitting is tempting due to the small size of a motorcycle and the convenience afforded by being able to weave your way through heavy traffic, it is illegal in every state except California. If you were lane-splitting at the time of your accident, your case will be difficult to win.
- Turning left: Turning left will often place you right in the middle of an automobile’s blind spot. Although turning left doesn’t necessarily make the accident your fault, it can still get you hurt or even killed.
- Getting caught in someone’s blind spot: Turning left is not the only way to get lost in a motorist’s blind spot. Never forget the principle stated on the bumper stickers of many commercial trucks: “If you can’t see my mirrors, I can’t see you.”
- Rounding a bend too quickly: Rounding a bend too quickly can lay your motorcycle down when an automobile would have survived the turn, due to the ease with which a motorcyclist can lose his balance. Given a motorcycle’s lack of frame protection, the results can be deadly.
- Distracted driving: Motorcyclists are difficult for motorists to spot even under ideal conditions, much less when the driver is distracted by, say, a text message.
- Intoxicated driving: Self-explanatory.
- Debris on the road: Even the remnant of a tire blowout can send a motorcycle into a tailspin, with disastrous consequences at high speeds.
This list is far from complete – there are a thousand ways to cause a motorcycle accident.
Negotiation vs. Trial
Over 90 percent of motorcycle accident claims settle outside of court. That doesn’t mean injured victims file lawsuits only 10 percent of the time. Sometimes it is necessary to file a lawsuit to force the other side to part with evidence that you need to pursue your claim. In such cases, the parties still typically settle the claim out of court and a trial never occurs. Nevertheless, your only leverage in settlement negotiations is your ability to win by proving your claim in court.
Proving Medical Expenses
The most prominent element of compensation that you are going to need to handle is medical bills. Document all medical bills and keep the receipts, because you will need them as evidence later. You can also use these receipts to prove that you received a particular form of medical care on a specific date.
Naturally, health care providers keep medical records of their own, which you can collect and use as evidence. Don’t rely too heavily on this approach, however, because something might happen – a doctor’s office might go bankrupt and dispose of all of its medical records, for example.
Getting Medical Bills into Evidence at Trial
Collecting medical bills is one thing, but getting them into evidence at trial is another. Even at the negotiating table, the defendant will likely ignore any medical bills that he believes cannot be introduced into evidence should there be a trial. There are two ways to get medical bills into evidence at trial: stipulation and testimony.
A stipulation is when the opposing party agrees to allow medical bills into evidence without challenge. Introducing medical bills into evidence through testimony involves questioning the recipient, the issuer (a healthcare provider), or the issuer’s record keeper under oath to confirm the legitimacy of the bills.
Establishing That Medical Bills Are Reasonable and Necessary
The defendant is obligated to reimburse you only for medical expenses that are “reasonable and necessary.” In particular, this means that:
- The amount of the bill was reasonable under the circumstances.
- The bill represents treatment for an injury that was caused by the defendant’s misconduct, not a pre-existing injury.
- The medical services were necessary for the treatment of the injury. You might trigger some questions, for example, by submitting a bill from a chiropractor.
Maximum Medical Improvement (MMI)
Maximum Medical Improvement (MMI) is the point at which your doctor doesn’t believe your condition will improve anymore. Hopefully, MMI won’t occur until you have fully recovered from your injuries. Unfortunately, however, MMI may leave you with a permanent disability.
Future Medical Expenses
Once you reach MMI, it should be possible to calculate future medical expenses. Of course, if you make a full recovery by MMI, then you shouldn’t incur any future medical costs. If, on the other hand, you suffer a continuing disability that requires ongoing treatment, you are likely to accumulate medical expenses in the future and you should claim them now.
Proving Pain and Suffering
“Pain and suffering” refers to the suffering that you endured as a result of your physical injuries. In most cases, compensation for pain and suffering far exceeds the amount awarded for more easily countable losses such as medical expenses. Even though pain and suffering are hard to place a dollar value on, you must still prove this element of your damages claim using admissible evidence.
The two most common ways of calculating pain and suffering are:
- a daily rate ($200 per day, for example); or
- three to five times your total medical expenses.
Evidence of Pain and Suffering
You can prove the extent and ultimate economic value of your pain and suffering through:
- Your testimony, including oral and written statements about the extent of the pain and suffering your injuries caused you: Visibility matters – “road rash” is likely to be more convincing than whiplash, although you can receive compensation for both. You might also call household members as witnesses to testify about the extent of your pain. Unfortunately, your statement that “It hurts a lot” is probably not going to be enough to get you maximum compensation without something else to back it up. Use objective measures, such as your withdrawal from activities that you once enjoyed, strains on your marriage and social relationships, etc.
- Physical documentation: X-rays and medical charts can help document pain and suffering, as can photos of your injuries and prescription drug records. You can use a morphine prescription, for example, as evidence of severe physical pain, and you can use an antidepressant prescription to prove that you suffered emotional distress related to your physical injuries.
- Expert witness testimony: An expert medical witness can testify to the degree of pain that is typical of someone suffering from your condition.
Future Pain and Suffering
As is the case with medical bills, if you suffer from a long-term or lifelong injury, you are going to need to estimate and then demand an amount for future pain and suffering. If continuing pain prevents you from returning to your old job, you may need to claim a large amount of future lost earnings as well.
If You Weren’t Wearing a Helmet
Failure to wear a motorcycle helmet at the time of the accident will almost certainly affect the amount of damages you receive. If you suffered a head injury, as helmetless motor vehicle accident victims practically always do, a New York court is likely to rule you negligent as a matter of law and bar you from recovering any money for your head injury. You can still recover for other injuries (road rash, for example) if you can prove the accident was the other driver’s fault.
We Can Help
The aftermath of a severe motorcycle accident is likely to take its place among the most traumatic periods of your life. You are certainly not going to feel like pursuing a personal injury claim against the person who caused the accident, even though your motorcycle accident claim will grow weaker the longer you delay acting upon it. Let us handle it for you.
If you have suffered a motorcycle accident injury, or if your loved one died in a motorcycle accident, contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation. We maintain offices in Albany, Colonie, Schenectady, Saratoga, and Troy.