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Our state requires that children wear a bike helmet while bicycling. My son went out without his, and died when a car hit him. Can we still sue?
There are a couple of issues here: one is a traffic violation (the helmet issue) and the other is a claim for injuries. Although helmet laws are intended to reduce injury, they also serve to reduce the liability and expenditure of insurance companies. So there will be an issue of comparative negligence since your son was not wearing his helmet. In other words, the motorist was at fault, but by not protecting against a potential injury, your son is partially responsible for the extent of his injuries. This would be similar to an auto accident in which the person was not wearing a seatbelt when required to do so by law.
If the driver was careless or negligent and caused the accident, he should still be at least partially liable for damages. And if you are able to show that the accident caused injuries to your son that would have been fatal even if he had worn his helmet, your damages may not be reduced.
Sometimes the police respond to the scene of an accident and may issue a traffic ticket to a party perceived as having done something wrong. You should get a copy of any written police accident report or other investigation that was done. Some states have laws that prevent anyone from filing a lawsuit if it stems from something they have done which violates a law. For example, if someone broke into your home and was bitten by your dog, the injured thieves probably wouldn’t get too far in court. But in practice, it’s the totality of the circumstances that determine the outcome.
This type of case is difficult to win in court. An experienced personal injury attorney can provide a competent assessment of your case, and will deal with the driver or his/her insurance carrier. Your attorney can also locate experts to help in the evaluation and presentation of your case, if it proceeds to trial. Should you prevail, you would be awarded considerable damages. |
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