What Florida Motorcyclists Need to Know About the State’s New Negligence Law

I’m going to say something right off the bat that I know won’t win me brownie points with Florida motorcyclists: You should all start wearing motorcycle helmets.

Before you scroll away, hear me out. This is not me getting preachy about the risks. You already know them. And it’s not that Florida’s motorcycle helmet law has changed. You still don’t legally have to wear one (assuming over 21 and have sufficient insurance, in accordance with F.S. 316.211).

This is about a recent state law change that will significantly impact the amount of damages you can collect if you’re injured in a crash while you aren’t wearing protective headgear – even if the crash wasn’t your fault.

As a longtime Fort Myers motorcycle accident lawyer, I have always been proud to advocate for the people in Southwest Florida who have been harmed in the course of their everyday lives through little-to-no-fault of their own. This includes Florida motorcyclists who aren’t breaking any laws in exercising their right to forego a helmet. This new law won’t shake that commitment. It will, however, make the job much harder.

Florida’s new comparative negligence standard is going to affect basically everyone who is filing a personal injury action in Florida from here out, but motorcyclists especially need to take heed.

Changes in Florida’s Injury Law Standards

The new tort reform measure, HB837, was rushed through the state legislature on the faulty premise that frivolous lawsuits are driving up insurance premiums. Not only is this incorrect, but we’d be willing to wager high stakes those auto insurance rates won’t drop much if at all.

There are many concerning elements contained in the new law, but it’s the altered comparative negligence standard we’re presently focused on. Overnight, we went from following a standard of pure comparative negligence to one of modified comparative negligence with a 51 percent bar.

Before we get into why that matters, let’s start with the fact that in many car accidents, motorcycle accidents, and bicycle accidents, more than one party is at-fault. Maybe you were speeding, but the other person entered your lane unsafely. In cases where there is more than one party at-fault, insurers and/or courts assign fault percentages. These can be used to determine how much the injured person is owed. For instance, if you’re assigned 20 percent fault and the other driver 80 percent and your total damages are $100,000, the other at-fault driver would be responsible to pay you $80,000.

Pure comparative fault, which is what we had before, allowed plaintiffs to be found up to 99 percent at-fault – and still collect the remaining 1 percent of damages from the other at-fault driver. (That’s not an ideal outcome for the plaintiff, of course, but it ensures everyone is accountable for their own actions.)

But now, we have a 51 percent bar on the plaintiff’s fault. What that means is if you’re more than 50 percent at-fault, you can’t collect any damages at all. The other driver could be 49 percent at-fault, and wouldn’t have to pay a thing.

What Does This Have to Do With Motorcycle Helmets?

Of course, this impacts everyone who shares the road. The reason we’re singling out motorcyclists here is two-fold:

• They don’t have the option of personal injury protection (PIP) no-fault auto insurance coverage. Other drivers have the fallback of up to $10,000 in no-fault insurance coverage. For motorcyclists, legal action against the negligent driver is their sole recourse.
• Not wearing a motorcycle helmet can be considered a form of comparative fault. If the defense can show that a helmet would have prevented the severity of your injuries, that may be enough to warrant a 51 percent fault finding.

Let’s say you’re out riding one evening – sans helmet – and are rear-ended while stopped at a red light. You fly off the bike and hit your head on the pavement, suffering serious head injuries. You didn’t cause the crash. In fact, in a rear-end accident, you’re entitled to a rebuttable presumption that the driver behind you was at-fault. But if your injuries were mostly head/neck/spinal injuries, the defense could argue these preventable if you’d worn a helmet. If they can make a strong enough argument, that other motorist – 49 percent responsible for the crash and your injuries – could walk away without paying a penny.

This is exacerbated by the fact that motorcycle injuries so often tend to be among the most serious. Not wearing a helmet could significantly increase the odds that you’ll be stuck holding the bill, even if the crash wasn’t your fault.

Whether you wear a helmet or not while riding, if you’re in a Fort Myers motorcycle accident, it’s more important now than ever to work with a skilled personal injury lawyer. (Don’t wait to do so either. The law also shortened the statute of limitations for personal injury claims from 4 years to 2 years, so the sooner you reach out, the better.)

 If you are injured in Fort Myers, Port Charlotte, Sarasota, Cape Coral, Naples, or Key West, contact Garvin Injury Law at 800.977.7017 for a free consultation.

Additional Resources:

HB837, 2023, Florida Senate

More Blog Entries:

Florida Injury Lawsuits: Tougher to File, Win & Payout with Passing of the New Insurance Bill, April 14, 2023, Fort Myers Motorcycle Accident Blog