The following is reposted with permission from Dean Frieder – cyclist and lawyer. Dean practices in Illinos, where his specialties are Municipal and Civil Law. He helped set up the non-profit Axletree organization to organize awesome bike rides and to promote cycling advocacy in rural Illinois. His point of view brings up some very real and scary issues.
Quick background: Two years ago, cyclists William “Kim” Flint was allegedly going for a new KOM record on South Park Drive in the Grizzly Peak hills east of Berkeley, CA. Reports say he was exceeding the speed limit and died when he crashed into a car. Video and story here.
Many folks in the cycling world have seen and commented on the recent litigation initiated against Strava, relating to the death of a cyclist.
If you’ve been living under a Rock, Strava is a GPS related app that allows you to create routes and upload them to a public database, with your ride time. Other riders can follow your route, and try to beat your time. In the inverse, you can select someone else’s route, and try to beat their time. The rider with the fastest time on a given segment acquires the title of “King of the Mountain.”
There was a rider who had set a KoM time on a public street in Berkeley, CA. Some time thereafter, he saw that another rider (we’ll call him the faster KOM rider) had bested his time, and he went out to try to improve upon it. In the process of doing so, he was riding over 40mph in a posted 30mph zone, collided with a car, and suffered mortal injuries. His family has now sued Strava, claiming that they are liable for his death.
Those twisty, turn roads are the roads that he was riding at the time of his accident.
Lots of people have been commenting on whether or not this litigation makes any sense. I tend to fall into what seems to be the majority consensus that the suit is pretty ridiculous. That said, I haven’t seen anyone analyzing what the big picture impact of this litigation is. Strava is a big company, with significant revenue to be able to cover its costs of defense, and almost certainly with liability insurance coverage to protect itself.
What about you?
The suit here is someone claiming that Strava was negligent by creating the KoM system, where riders engage in ‘competition’ without any protection. Here, they sued Strava. But what about the faster KOM rider? What if the decedent’s family claimed that the faster KOM rider took the KOM title by riding in a negligent or unlawful fashion, and that when the decedent tried to follow or beat that time, it exposed him to unreasonable risk of harm?
Breaking News: Strava User Sues Faster KOM Rider, Claiming that King of Mountain Time and Route were Unreasonably Dangerous and Caused Cycling Injury.
That sounds far fetched, right? But isn’t the reflexive reaction to the whole Strava lawsuit based on the public perception that the real suit is far fetched? What is to stop someone who is injured while trying to beat your Strava time from suing you? Nothing. So if you go out and post a KoM time, and someone tries to post a better time than you and gets hurt…there is no reason you couldn’t be sued.
In Strava’s case, they will undoubtedly assert that the decedent released any claims against Strava by agreeing to their terms and conditions, which include a waiver/release of claims. Strava’s waiver is here. In short, users agree that cycling/running/exercise is dangerous, they agree to waive and release any claims or potential claims against Strava (both for themselves and for their successors, heirs and assigns. In other words, the users are completely releasing Strava.
Of note, Strava could have chosen to include language here to waive claims against other riders, but did not do so. Instead of just waiving claims against Strava and its employees, Strava could have included language that a user of Strava agrees to release any other user of Strava, as well. Such language would offer at least some protection against another Strava user suing you based on a theory such as the one being advanced in this litigation.
Think this concept sounds scary? Let me make it a bit scarier.
Breaking News: Strava Sues Strava User for Attorneys Fees and $10,000,000 Judgment, Based on Contractual Indemnity Agreement.
Assume that the ‘real’ Strava lawsuit goes forward. The terms and conditions linked above do not just release claims against Strava…they also carry an indemnity provision. I’ll quote the indemnity here:
You agree to indemnify and hold Strava and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Site, your use of the Site, your athletic activities which generate the Content you post or seek to post on the Site (including, but not limited to, athletic activities in connection with any contests, races, group rides, or other events which Strava sponsors, organizes, participates in, or whose Site is used in connection with), your connection to the Site, your violation of the Terms, or your violation of any rights of another person or entity.
What does that mean? That means that if you do something and Strava gets sued as a result, you agree to not only pay Strava’s legal fees…you also pay any judgment entered against them. So in the ‘real’ Strava lawsuit, Strava could file a suit against the faster KoM Rider. The ‘real’ Strava lawsuit arises out of a KoM time and related content that the user posted to Strava, and is a third party claim based on that posted material…that’s enough to invoke the indemnity. So at least in theory, the faster Strava user is on the hook to defend Strava and to pay any judgment entered against them.
If Strava incurs $500,000 in legal fees defending the case, they could go after the faster KoM rider to pay those fees. If a $10,000,000 judgment is entered against Strava, they could go after the faster KoM rider to pay it. Folks, this isn’t far-fetched. This is exactly how the plain language of their terms of service read.
For that matter, forget about Strava users. What if someone goes and tries to beat my KoM time, and in the process nails a little old lady crossing the street? She isn’t a party to the waiver at all. She can sue the rider that hit her, Strava and me. If she’s just looking for deep pockets and only files suit against Strava…they can sue me on the indemnity language, and put me on the hook for their defense.
From a marketing/publicity perspective, it would be a huge problem for Strava if they sued one of their riders. But why in the heck would they include this language in their terms and conditions if they didn’t want the right to be able to use it? Think twice about that one.
I would respectfully suggest that Strava should immediately amend its Terms and Conditions to indicate that users not only waive claims against Strava and its employees…but also waive claims against other Strava users. That’s a simple, no cost step they could take to offer users at least some protection. It doesn’t impact their liability in any way–it would just take a minor tweak in their language.
I would also respectfully suggest that Strava should explain what they’re thinking with the indemnity. I completely understand if they want a user to indemnify Strava against any claims from the user himself–like the underlying ‘real’ lawsuit. If I’m using Strava and I crash, I shouldn’t be able to sue Strava (in my opinion). But if someone else uses Strava, tries to beat my time, gets injured and sues Strava, is it really fair to expect me to pay for their defense and indemnity?
My guess is that 99.9% of Strava users have never read the terms and conditions, and those that have read the terms have never considered what the indemnity means. If you use Strava and sign on to those terms, you’re taking on a big risk. It may seem like a longshot, but then again, doesn’t the whole ‘real’ lawsuit seem pretty ridiculous? And again, why would Strava include the language if they didn’t want to be able to use it?
The most shocking thing to come out of the Strava lawsuit isn’t the fact that someone would file what seems like a frivolous lawsuit–that happens all of the time. The most shocking thing is the potential liability for all Strava users, either to Strava or the rest of the world.