17 MORE THINGS YOU PROBABLY DON’T
KNOW ABOUT MOTORCYCLE ACCIDENTS
BY GLENN C. MCGOVERN
AV RATED TRIAL ATTORNEY AND MSF BASIC MOTORCYCLE INSTRUCTOR
[email protected] • 1-800-721-3992
[email protected]
1. What should I get from the driver at the scene in my motorcycle accident?
You need to get the driver’s license information, the driver’s insurance card
information, the item number for the accident report, the police department’s
name and address to get an accident report, and the investigating officer’s
name and cell phone number and carrier of the driver. More on that below.
2. How important are pictures in my motorcycle accident case?
Pictures and video are extremely important in any case but more so in a
motorcycle case. Pictures and video are very powerful at trial. They help explain
facts to the jury. They are highly emotional-and emotion drives up damage
awards. They are very strong proof of facts. They are critical in traffic signal or
road construction defect cases also. Take pictures of the drivers’ license front and
back, his cell phone, the vehicles all around, the traffic signals, any injuries you
have and any road defects like loose gravel, drop-offs, malfunctioning signals
or any conditions that caused the crash
3. How important is it I find and obtain video or the motorcycle crash?
Video is powerful visual evidence for a jury. There may be municipal or police
video cameras, witness cell phone videos of the crash, or surveillance cameras
at businesses near the crash location. Make a note to look around if you can to
note the location of adjacent video cameras.
4. What are sources of video of a motorcycle crash?
Crime cameras, business video cameras are plentiful, other witnesses may have
cell phone videos and some vehicles have videos on them. You must look out for
these after any crash. They can make or break a case.
5. How important is a video to a jury in a motorcycle accident case?
I can tell you we do bi-weekly focus groups since 1996 and our focus groups
and trials prove that any video is an overwhelming visual exhibit for a jury. It
can prove liability. It drive up damages significantly. It can be emotional. And
emotion drives damages. It can also sink your case. You must test every exhibit
before trial with focus groups. Few attorney’s do this. It is a lot of work and
takes special knowledge. My team does them all the time on all of our cases.
We have successes due to this use of focus groups. I had a defective Hayabusa
case with a fatal crash. The brakes and electronic were made unsafe by the
dealer. I purchased an identical Hayabusa to run dyno tests and rented Texas
Speedway to make tests and videos. We carefully picked two video clips to use
at the jury trial after testing in focus groups. We tested the video and all the
exhibits in multiple focus groups to see what worked and what did not work. I
won a record 2.83 million dollar judgment in Orleans Parish Civil District Court
and the video was critical. I shudder to think about how we tried cases without
any focus group data. We don’t do that anymore!
6. How important is a animation of a medical procedure in a motorcycle case?
A medical animation is expensive but very important. It shows in a few
minutes how a medical procedure is performed in layman’s terms. It can greatly
increase a jury award. It can also help prove disability. It is a powerful weapon
for jury trial. We always do these.
7. How important is an animation showing how a motorcycle accident
happened in a motorcycle accident case?
There are two types of animations for trials: 1.) A reconstruction animation
and 2.) A demonstrative type animation.
Animation must be carefully done to be accurate or it may be barred from
the jury by a motion in limine being granted by the judge before trial. A good
animation can vividly show in layman’s language how the crash occurred. It
must be tested to make sure it works. I have had to redo an animation 5 times
to get one that works. If done wrong it can you’re your case. An well done
animation is powerful tool that can lead to a good result at trial.
8. Should I preserve my motorcycle and riding gear after my motorcycle
accident?
Yes you must do so. It is necessary for an accurate accident reconstruction of
the crash. It is critical in a product liability defect case.
9. Why is that important I preserve evidence and the other side preserve
evidence of the car that hit me in a motorcycle accident?
If anyone losses or destroys evidence it can lead to a denial of a claim based
on spoliation. One has a duty to not intentionally destroy evidence in a case.
10. What are black boxes on vehicles and why is that important to preserve as
evidence?
Black boxes are electronic computer storage devices in all modern cars and
trucks. Some motorcycles with GPS functions can also contain valuable data in a
crash in its onboard computer. This electronic data can be downloaded by police
or later after a crash by our experts if the car or truck is not restarted. Restarting
the engine can possibly destroy and erase the data stored. This can be powerful
evidence of speed, braking, seat belt use, airbag deployment times, steering
and g forces.
11. How many vehicle accidents are caused by distracted drivers in the U.S?
According to NHTSA and DOT published research study HS 812 381, March
2017 – In 2015, there were 3,477 people killed and an estimated additional
391,000 injured in motor vehicle crashes involving distracted drivers; 10% fatal
crashes, 15% of injury crashes, and 14% of all police-reported traffic crashes
were reported as distraction-affected; 9% of all drivers 15 to 19 years old
involved in fatal crashes were distracted at the time of the crashes. This age
group has the largest proportion of drivers who were distracted at the time of
the fatal crashes; there were 551 nonoccupants (pedestrians, bicyclists, and
others) killed in distraction-affected crashes.
12. What is distracted driving in a motorcycle accident case?
Distraction of drivers may be from many causes including by cell phone
usage, surfing social media, text messaging, dealing with the GPS, dealing with
the radio and electronic control panel in the center of most dashboards, eating,
putting on makeup, interaction with passengers in conversations, or sorting
papers or picking up an object that falls off the seat onto the floor are all car
driver distractions. Talking hands free on a phone does not make the driver not
distracted. A driver talking on a cell phone’s causes the driver’s motor control
to deteriorate to that of a drunk or drug impaired driver according to NHTSA
studies.
13. What causes distracted driving?
University of Iowa researched why talking on cell phone adversely affects
driving performance . in a study in June 2017, Researchers used computerized
experiments that tracked eye movements while asking subjects to answer
true or false questions to mimic having a cell phone conversation or even
26 Thunder Roads Magazine LA/MS Gulf Coast | November 2018 | www.thunderroadslams.com
a conversation with a passenger. Doing so caused participants to take about
twice as long to direct their eyes to a new object than those who were not asked
to respond. This phenomenon is referred to as “attentional disengagement.”
And, the more the brain was distracted the worse participants performance
became, a “snowball effect.” This makes matters worst for motorcyclists and
scooter riders. Few car drivers are trained to look for motorcyclists and scooters.
Fewer can judge a motorcyclists or scooter’s speed accurately. Their judgment
is flawed.
14. How do I prove distracted driving in my motorcycle accident case?
Sometimes (but rarely), the police will download data at the scene of the
drivers cell phone. You should request this be done. This will show any web
browsing on social media sites like Facebook. 39% of residents check Facebook
on their phone when they wake up. (They are addicted!) If the police do not
download the data, the phone records can be subpoenaed to show cell phone
activity. Texts may only be stored on the actual chip on the cell phone and are
only kept for a fixed length of time by the cell phone provider. Try to get the
driver’s cell phone number and provider information if you can at the scene.
Unfortunately a driver is only required to carry $ 15,000 in liability limits
coverage in Louisiana. Most motorcycle crashes involve serious injuries or death
with high ambulance and medical expenses. $15,000 is totally inadequate. That
is why you need to carry Uninsured Motorists Coverage.
There is so much to learn about motorcycle crashes and litigation. I hope you
learned a few tips to help you if you are unfortunate enough to be hit by a car
or truck that fails to yield. If you have any questions please call me at 800-721-
3992 or email me at [email protected]
I hope this helps you to know how to deal with the other driver’s insurance
company when you are involved in an motorcycle accident.
15. What kinds of manufacturing defects can be sued for in a motorcycle
accident case?
Like any mechanical vehicle, they can have defects in design or manufacture
or by improper acts of maintenance by the dealer. I have seen, suspension
pieces, tires and rims installed improperly and backwards. This may be the
cause of a motorcycle crash. I have seen motorcycles sold with totally worn
brake pads and ineffective brakes causing a death of the motorcycle rider. I
have seen cases where the electronics were altered making a motorcycle unsafe
and uncontrollable due to the dealer’s fault. I have seen motorcyclists seriously
injured due to wobble by improper designs of certain motorcycles. (Many
models of Harley-Davidson are known to be prone to violent wobble at below
65 m.p.h. with fatalities). ABS braking systems are required in Europe but
not in the U.S. as of 2018. NHTSA and D.O.T. just passed regulations requiring
ABS braking systems on all motorcycles in the U.S.A. Some have argued that
the failure to install ABS brakes by the manufacturer is negligence by the
manufacturer. There is no doubt statistically that ABS reduces motorcycle
crashes. We had one case where the driver had a minimum $15,000 liability
police and rear-ended a motorcycle at night in rainy conditions. The motorcycle
had a brake light turn signal combination that was not D.O.T. approved and very
low light output. The manufacturer had boosted the brake light was so bright
they could not video it! I sued the manufacturer for failure to warn product
liability. We won over $400,000 from the manufacturer. The manufacturer had
no D.O.T. approval and never tested the brake light. Basically, they lied. The Lord
detests liars. And so do juries!
16. How do I recover from the driver who has no insurance?
This is a problem in Louisiana. 40% of the drivers have no liability insurance
and yet drive on public roads. You should have Uninsured Motorists insurance
coverage or UM to protect you from uninsured or underinsured motorists. UM
is expensive but you and your family need this protection. A skilled motorcycle
attorney will extensively investigate the crash to see if the motorcycle had a
defect or a part was defective and caused the crash. This can result in a recovery
even if the driver has no liability insurance. Most attorneys that don’t do a lot of
motorcycle cases and don’t understand motorcycles do not carefully investigate
the crash. Unfortunately most attorneys are not trained in the science of
motorcycle operations. I have raced motorcycles in the U.S. and in Europe. I
am a MSF Basic Motorcycle Instructor and keep my certifications up to date.
Motorcycles are just as complicated as aircraft. The engineering is very complex.
They are marvelous machines!
17. How much liability insurance does a driver had to have in Louisiana?
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