The Explainer: Whose risk is it anyway?

It seems simple enough. Post your time and see who can beat it. But what happens when someone gets hurt?

Dear readers,
I have to admit, I have mixed feelings about last week’s topic. On the one hand, I am tired of writing about a guy who should, by now, pretty much be gone from the headlines. (Yeah, I know, he was mounting a return to triathlon, but for me “triathlon” generally means “totally off of my radar screen.”) On the other hand, I remain interested in seeing some serious lingering questions asked – and answered – in a cohesive fashion.

That said, I welcomed the suggestion by “Jim D” in the comments section, as he invited me to cover a new subject:

“Hey Charles, New subject, Strava lawsuit.”

Okay, okay, I admit, I had no idea what the “Strava lawsuit” is, but as long as it didn’t involve that one guy, I was game. Now, I think I know what a lawsuit is, but what the hell is a Strava?

Well, thanks to the InterTubes, the answer was quick and easy. This Strava thing actually turns out to be pretty cool. Strava is a nifty little social network for endurance athletes, namely runners and cyclists. Sort of Facebook for jocks, but with something more interesting than photos of kittens or posters’ most recent meals.

By uploading data via an iPhone, Android device or GPS unit, one can virtually “compete” on an array of courses all over the world. It’s a variant of MapMyRide and a 21st Century version of the bragging rights we all fought for back in my day.

Back in the ‘80s, my buddies and I had a bunch of pre-set courses all around our little town of Laramie, Wyoming. We pretty much knew who held the record on “The Summit,” the original five- and 10-mile “Dead Dog” time trial courses, “The Big Hollow,” or the 20km climb up the Snowies, be it via Highway 130, or that beautiful – but often-closed – route up Barber Lake road. All of that provided motivation. If Danny or Bob or Rex knocked off “The Summit” in under 15, I sure as heck was going to do my best to nail it in 14:45 … or better.

Strava just adds some cool technology to the formula and even brings a bit of confirmation to the claims. In our day, we would require a witness or two to verify times. Now you can do it with your iPhone.

Good enough. So from whence cometh a lawsuit?

Strava is a terrific service. Indeed, if you score top bragging rights on a particular ride, it will let everyone know how much of a stud you are. If then someone else beats your time, your iPhone will essentially call you a wimp and push you to better that. Strava can do a lot to fan the flames of your competitive fires.

And therein lies the rub.

Competition or obsession?

According to a wrongful death lawsuit filed in San Francisco Superior Court last Monday, some riders will go to extreme lengths to protect their “title” of being the fastest on a given course.

One of them, 40-year-old Kim Flint Jr., had the distinction of being the “King of the Mountain” on a route in Tilden Park in Orinda, California. Although it is my understanding that the “KOM” designation is awarded only for the climbs, one’s time for the entire route – from start to finish, with ascents and descents included – is recorded and compared. Part of the Tilden Park route involved a steep descent on South Park Drive.

It was there that Flint was racing down the hill on June 19, 2010, at what attorney Susan Kang said was at speeds of around 49 miles per hour. That was being done on an open road, with through traffic and a posted 30mph speed limit.

According to the suit, “in pursuit of regaining his title, Kim Flint Jr. came in contact with an automobile and was killed.”

Now, on the eve of the statute of limitations tolling, Flint’s parents have filed a wrongful death suit against Strava, citing the site’s failure to live up to its “duty of care” to participants, particularly Flint.

That duty of care, notes the suit, should have included notice that competitors should use “the degree of care that a reasonable person in the same situation would have used to protect their users from danger.”

In other words, the plaintiffs are arguing that Strava had a duty to at least advise its users to exercise caution, while it was also encouraging them to compete against one another.

For its part, Strava denies liability.

“Based on the facts involved in the accident and the law, there is no merit to this lawsuit,” company spokesman Mark Riedy said. “We again express our condolences to the Flint family, but we will defend the company vigorously through the legal process ahead.”

The reaction has largely been negative from the Twitterati in the cycling world. Some have suggested the family is only out to make a buck. Others have faulted the attorneys involved for “convincing” the family to sue. Most critics suggest that the accident was the result of risks that Flint assumed for himself and that the fault is his and his alone.

Does holding a ‘virtual’ race make you a ‘virtual’ promoter?

I think the whole thing raises some interesting questions, not least of which is whether Strava has, in essence, become a race promoter and, by doing so, assumed at least some of the duties that accompany that designation.

Like I said, I love the technology that Strava has woven together in way that allows riders to expand their community to something more than the usual cadre of friends they get to ride with. It’s pretty damn cool.

The routes are those that users design. Our old “Big Hollow Loop,” could easily be entered into the Strava database by riders in the area. Then, any time an interested party does that ride, they can compare their best time to those of others. Nifty.

As mentioned, whenever your time is beat, you get your chain yanked by Strava, essentially asking you if you are going to let the new time remain unchallenged. By doing so, Strava, in my opinion, is dancing awfully close to becoming a promoter.

Hear me out on that, before dismissing what might be a weak argument. Admittedly, Strava does not travel the world picking out “race” courses on which riders will assemble at a given time and race one another to the finish. Strava’s “races” amount to an open-ended competition, over courses that participants themselves design.

What has me concerned, though, is the site’s willingness to encourage such competition on courses none of its employees have necessarily seen and then to maintain records, award prizes and bestow titles upon those who ride those routes the fastest. There appears to be little or no consideration of the factors over which traditional promoters lose many a night’s sleep.

In the traditional sense, a promoter is responsible for providing a relatively safe route on which riders can compete. If any of you have put on a road race, you know of what I speak. The checklist is seemingly endless. There are questions of road closures, or at least “rolling enclosures” and police assistance and, the 800-pound gorilla of event promotion, liability insurance. No promoter in his right mind would hold a criterium in downtown Denver at rush hour, with traffic on the course. Strava participants can do just that. The question is whether Strava is at least somewhat responsible if someone chooses to do that.

If Strava is determined to be a “promoter” then it will be assigned many of those same duties. At minimum, it could mean that Strava would face the onerous task of reviewing courses for potential dangers, dangers that are inherently amplified when riders “compete” on open and unregulated roads.

Of course, we’re all familiar with the release form we sign before toeing the line at a bike race. Even with a release form, a promoter has a host of duties. As I’ve said before, you can’t put on a criterium over roads where all of the manhole covers have been removed. That’s not an “inherent risk.” A failure to meet those responsibilities – what lawyers call a “breach of duty” – opens up the floodgates when it comes to liability. As a “social network,” Strava contends it doesn’t have to do any of that.

Nonetheless, following the Flint family’s decision to file suit, Strava did modify its terms of service, in a way that looks awfully close to a traditional release form. The terms now require users to acknowledge the “inherent risks” involved in “these activities” and that they carry with them “significant risks of property damage, bodily injury or death.” It also notes that a participant must “assume all known and unknown risks” involved in such competition.

No, the amended terms of service are not anything that will be introduced at trial. Such remedial steps are inadmissible, largely because to allow their introduction as evidence of earlier negligence would discourage potential defendants from improving a product or service out of fear of a subsequent lawsuit.

Attorney Kang concedes that the “biggest hurdle” she faces in her suit against Strava is that whole “assumption of risk” question. Namely, that a reasonable person who engages in competitions on open roads knows and accepts the risks involved. Maybe.

What the court will eventually have to weigh is whether Strava’s role in encouraging competition puts at least some of that risk – and the ensuing liability – on the company, too.

What about innocent bystanders?

Those “inherent risks,” however, were not assumed by 71-year-old Sutchi Hui, who was merely walking across the street in San Francisco in March, when he was struck by 29-year-old Chris Bucchere. Bucchere was allegedly “competing” on a Strava course known as “the Castro Bomb,” when he hit Hui, who died from his injuries four days later. Bucchere has been charged with vehicular manslaughter.

If the allegations in this case are proven – either in civil or criminal court – Bucchere is clearly responsible for Hui’s death.

Is Strava? Kang suggests that the company played a role in encouraging Bucchere’s behavior and is at least partially responsible. As lawyers and law professors are prone to do, she underscores her point with an interesting hypothetical.

“Imagine how people would react if someone were to do that with cars,” she said.

Good point, counselor. Imagine a website that encouraged you to cover a certain road or stretch of highway faster than the last guy. It wouldn’t take too long – maybe minutes – before someone violated the speed limit in order to earn the “title” of being the fastest on that road. Then, in order to protect that title, one would have to start by violating the law.

We might still have the assumption-of-risk issue if a driver was killed, but I would have to believe that there might be a consensus when it came to holding the website at least partially responsible if one of those “competitors” struck and killed a pedestrian or another driver.

Kang said that Flint’s parents’ primary goal is to prevent what happened to their son from happening to someone else.

“They aren’t in this for money,” she said. “They want this to stop before someone else gets hurt or killed.”

No one has filed suit in the Hui case. If they do, it’s likely they will name Strava as one of the defendants in the case. They will most certainly argue that under its current configuration, the Strava competition model actively encourages a disregard for safety and the law. Whoever handles that case will most certainly look to the outcome of Flint v. Strava for guidance. I’ll be watching this one, too.
Charles
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.

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51 comments

  1. Rick

    The cyclist was speeding which, I would think, make him liable. Strava, like a bar that serves a driver one too many drinks, may have a degree of responsibility. It is time cyclists, who demand drivers have awareness and respect for them, act accordingly. I think the driver of the car the rider hit has more standing than the cyclists family. There are any number of cases where someone was found responsible for inciting, inflaming, criminal acts. Strava is there.

  2. Randall

    Not to take a side here, but Google maps (or whoever else) can provide travel time estimates, and does on a daily basis. It would be fairly easy for Strava to have a particular segment automatically flag as dangerous if a record time was faster than the prediction (by whatever margin deemed reasonable). They could also do a max speed vs. Speed limit check and void results where someone was clearly breaking the law.

    My opinion is that the web-site probably isn’t responsible, but there are safeguards that would be simple…

  3. Graham I

    I thought not liable until I remembered the goading email that I had been knocked off my KOM perch. It was a run so probably no risk to anyone other than my heart.

    If this guy had been racing himself on a virtual course – that the Garmin devices provide as a feature – would that have made Garmin liable for goading him to best himself?

  4. Doug Page

    Let’s talk about responsible behavior. Strava is a for profit enterprise, whether or not one pays for the service. It’s like selling beer. You do that in a supermarket, you don’t have a drive-thru beer store on the freeway. You don’t sell guns and ammo outside the soccer stadium after a losing match. It’s just common sense. Like not promoting racing downhill on city streets. I agree that suing Strava because someone decided to kill himself is stupid. Killing an innocent bystander, however, is another matter entirely. I and my riding buddies have done many stupid things among ourselves and yes, also on the street, but the profit motive was absent.(beers may have been mentioned, however)

  5. Scott

    This just makes sick. Nobody wants to be accountable for anything, no matter how stupid. While a trajedy for sure, I hope Strava gets their legal bill reimbursed by the money grubbing parasites.

  6. Frank

    Doesn’t Strava give you the choice of receiving (or not) those notifications that your KoM has been beaten? Legally speaking, would that make a difference here?

  7. Paul B

    It seems Strava may have some degree of contributory negligence, but a 40-year-old who’s so susceptible to imagined peer pressure seems to bear the brunt of the responsibility here. If you want to test your fitness/manhood against your peers, pin on a number and line up in a real race, complete with inherent risks. Your local club and its legion of volunteers will appreciate it.

  8. Mark J

    I can’t believe that rational people are entertaining the idea of ‘fault’ by Strava based on a minor gamification aspect to their service. So a jpg image of a ribbon is enough to provoke absurd and dangerous behavior. It’s a “goad”?

    If you start to follow the network of ‘goads’ of any kind, it pretty much encompasses the world. Is a billboard with an image of a 20 foot hamburger or can of beer a ‘goad’ to obesity or drunkenness? Is a car with nice lines a ‘goad’ to behavior that might end up in a pedestrian or cycling or driver death? Probably, yeah.

    Is that really you want to go with this stuff? People are so ready to bureaucratize this and say “oh we can be reasonable, we can take steps” — ‘let’s have clubs watchdog this’; ‘let’s set up an approval process for courses’ . . . This lust for administration is every bit as ugly as the lust for litigation.

    The guy rode outside his capacity. It’s his fault. He may in fact have killed someone else due to his negligence, whether he’s timing things on his watch or reacting to a Strava PR image. There’s nothing anyone can do about it.

  9. Eric

    Virtual Promoter = Virtual Insurance = Virtual Settlement?!

    Anyone know if California is a contributory negligence state?

    Its seems hard to believe Strava could be held to be more then a small percentage liable for the death of the cyclist. Also, what was the motorist doing? Maybe the guy got hit by a car that was also speeding or swerved improperly etc.

    The analogy comparing a strava like app involving cars to strave might not be as devastating to their position as it sounds at first. During the 70s and 80s Car and Driver Magazine actively encouraged renegade cost to cost automobile races known as the Cannonball Run (also the subject of some Bert Reynolds films but that’s another negligence issue).

    Certainly if someone was killed in the participation of the cannonball it would be problematic for the mag, but informing people that they can choose to participate in unofficial land speed challenges can’t create much if any liability.

  10. Skippy

    Fatcyclist wrote about his wife , Lisa earlier this week ” owning ” a number of “QOM ” records and her response when a number were then beaten ! All in good fun and my comment suggested he had created a ” Bed of Nails ” for her in that there will be ” goodhearted attacks ” on her status by all and sundry .

    To preserve their individual records , ” many ” will start their ride inside their front gate or some such place . Does this mean that ” Strava ” are involved ? Fact is that company set out to encourage a social setting where ” Reasonable people ” could have a sense of adventure and a challenge that allowed others to join should they wish ! Who would have thought that some ” Competitive type ” would become so ” unbalanced ” that they considered the risk to their life and limbs as less important than ” bragging rights “?

    Had that guy survived the course and failed to beat his previous best , would he have SUED Strava ? Did he know any of those using the same ” Virtual Course “? Was he in competition with his ” mates” ? Would he have suffered ” humiliation ” had he failed to beat his previous time ? Were his previous attempts on this ” Virtual Course ” recorded AND did he race then with the same disregard to his and anyoneense’s safety ?

    With the best will in the world , Strava could not conceive of the abuse that ” clients/users ” would impose on their services and thus could not be held liable for the actions of those setting out to flout ” commonsense “!

    Sounds like the Lawyer is seeking to ” Grandstand ” and has done the ” Greiving Family ” no end of harm !

    Back to he who should not be named !

    Called for a ” Sporting Moratorioum “to be IMPOSED by the IOC and WADA in my blog so as to do away with the ” fingerpointing ” once and for all !

    Parents should know the background of those that they allow to train their offspring . A moratorium will empty the ” CLOSETS “of those Athletes and their helpers if the risk is a ” LIFE TIME BAN ” for ALL if later found out ! Even if it takes a generation to get rid of those who think ” Sporting Fraud ” is acceptable there will come a day that we will be able to believe that an Athlete was responsible for the results they achieved !

  11. David

    Two things here. First, IIRC the goading emails were just recently put into place. So, for an accident in 2010 there would not have been any pressure from Strava as other commenters have described.

    Second is that users can flag any course as dangerous. Typically, this is used for a segment that includes stopsigns/stoplights, but it can be for any reason. In my experience (and that of others) the segment is eliminated even if you attempt to prove otherwise. While they don’t go out individually and check, this is at least a measure intended to remove the offending courses.

  12. Harold Woodley

    Anyone remember when people just died…period. That was it. Their survivors grieved and then moved on. God how I miss those days. I detest the lottery mentality that pervades our citizenry. (FYI – This sentiment does not extend to the Hui case; while I don’t think Strava is at fault at all, the cyclist broke the law and should be liable in my opinion.)

    I had KOM on a crappy little climb (mostly because no one rode it) then I lost it a couple of weeks back; know what I did? I thought “bummer” and then forgot about it. Strava didn’t follow up with emails calling me a wussy or anything similar. If I got all aggro about getting the KOM back, that would have been totally on me. And if I broke my neck riding into one of the giant potholes on that route that would be on me as well.

    Everyone, take responsibility for your own shit! Anything outside of sitting on your couch during all of your leisure time is likely going to be a little bit dangerous (and even that will get dangerous in the long run; don’t sue the pizza delivery guy). Come to grips with that and act accordingly.

  13. John in Miami

    I broke away from my Sunday morning ride group and formed my own group because I got tired of the “race” mentality of cycling friends. Jeez, people have forgotten that we cycle because we enjoy doing so, not for the competion.

    As another poster above wrote, you want to brag about beating others on a climb or a race, attach a race bib to your jersey and do it that way.

    I’m one of the slowest guys in my group and totally suck when the grade of a climb exceeds 1%. I know who the fastest rider in my group is and consider him my best friend, that being said, he’s also not into riding just to show off.

    Charles, you really opened up a great can of worms on this one!

  14. Tom Knox

    Darn, I was going to promote a virtual stand your ground competition. The rules were simple, two guys or gals meet with the weapon of their choice and proceed to stand their ground in single elimination. (I wanted dual elimination but quickly realized it would not work). The competitors move through the brackets until there is only one left. The winner would be us cyclists who hopefully would have less weapons waived at us from passing vehicles. It is getting really hard to know what to promote, parents will sue you because their kids got fat playing your video game. so you encourage them to get some exercise and they sue. I am nervous just posting this someone will sue me because they developed carpal tunnel syndrome responding to my post.

  15. Josh

    People need to be accountable for their own actions! If I shoot you are you going to blame the guy who made the gun? After Strava is the family going to sue the bike company that made his bike?

  16. Jim D

    It strikes me that this is a virtual world type problem. So it requires virtual judges, jury, lawyers, etc. Like this web site. Strava should not be responsible. I think maybe Strava should sue every Darwin out there that that doesn’t know responsibility for their own actions. This is the sort of thing that makes a person just shake your head. The person made a bad choice in judgment on the road on his own.

  17. Rick

    Perhaps not the manufacturer, but the provider of a forum that encouraged dangerous and reckless use of the weapon, yes. I fault the rider primarily, but Strava too. Providing a “bully” pulpit, encouraging trash talk to those who, seemingly, are competitive without accompanying skill. Strava’s forum is reckless. If it were a site that racists visited where the talk encouraged violence Strava would be liable. It is time for bicyclists to be responsible. If a person needs a local KOM tag to be fulfilled they have bigger issues. Unless you are breaking Lemond’s times up the hills then, really, just be safe, have fun, don,t get injured and most of all don’t place some innocent in a situation where you, or they, are killed.

  18. Patrick

    Well said, Charles. As a Strava user who has been notified of lost KOMs a couple of times, I could see a judge siding with the family and hold Strava responsible to encourage unreasonable people to do unreasonable things. What’s the first thing you think when a message in your inbox tells you that you just lost your KOM? I’m gonna get it back. Strava should put back the true meaning of a KOM and award it to climbs only.

  19. Peter Kelley

    I use STRAVA and like it a great deal. I would like to think that STRAVA has no culpability in these cases, but when I read Charles’ article, and think about it a little, I start to think that yes, they are partly responsible for these deaths. After all, they are encouraging, facilitating, and promoting competition – without regard for the safety of the participants or anyone else.

    Certainly they own some of the responsibility for the pedestrian’s death. And if they own a piece of that responsibility, then it’s hard to believe that they don’t own any responsibility for the rider’s death.

  20. El Tejan

    @Rick et al:

    I have a hard time seeing how the “Strava is like a bar(tender)” analogy is apt. The bar is serving alcohol which absolutely impares brain function and (therefore) muscle control. Somebody that is drunk not only has poor physical reaction time but also isn’t as mentally attuned to that fact.

    How exactly is Strava altering ones ability to recognize the inherent danger in bombing a descent above the posted speed limit.

    If I were to try to find a more realistic alcohol-related analogy, Strava is more like a mixology app I have on my iPhone. Both suggest to me, “hey, this might be cool to try.” But it’s on me to recognize, “oh yeah, that might be a bit dangerous.”

  21. Rick

    @El Tejan

    I understand what you mean about being responsible for our own actions. I believe the providers of a forum that encourages thoughtless or irresponsible acts has some responsibility too. Regardless I am sorry for the loss. I wish all riders exercised thoughtful judgement. Be safe riding El Tejan. On a side note let’s all support LUG for the TdF!

  22. Alex TC

    Cyclists compete since bicycles exist. People die and/or get injured racing or just riding, alone and in groups. Strava just connect people. To say they encourage record-breaking at any cost or are in any way responsible for when, how or where people ride is just… well, I’m outta words for this absurd.

    I was raised in a way to act responsibly yet I don’t always do so, I admit and without shame. But I take full responsibility for my actions either way. Also, I can think for myself so not to feel outraged or compelled by what I consider inocent emails or calls for challenge or anything.

    If I feel like racing, officially or not, I just go. Otherwise I just brush it off. There’s always someone out there who’s faster or more daring or even crazier than us, big deal.

    So yes it is hard to me to conceive someone suing a website or social network, virtual or not, for anything that happens to me as a result of my actions. I’d be ashamed if my family did so as well, though I doubt it would happen due to the way they educated me about how to live in this world.

  23. spiff

    Strava has nothing to do with this sad accident. I that descent is fast then it is fast. He may have been down it 100 times with no cars in site, then the first time there is a car where there never was one before. What do you do?

    I use Strava sometimes as a training tool the leading times on the roads here are almost out of reach for me. I spend more time chasing my friends in real time that I don’t need extra tools.
    If you take chances on the road then your time will come.
    Sorry.

  24. randomactsofcycling

    Myself and some club mates went nuts on some of our local descents when we discovered STRAVA. After a couple of weeks of skimming a couple of seconds off every segment, we all sat down for a coffee after a ride and someone said “gee, you nearly lost it on that fast right hander”….that was enough for all of us to quit being quite so reckless on the descending ‘KOM’s.

    We are reasonable people. We made a reasonable decision.

    I hope the Judge in this case is reasonable.

  25. Sami

    I really hope this lawsuit is dismissed quickly without merit. Rider kills self. Does not matter whether he was timing himself or what the tool used for timing was.

  26. mikejisrael

    Strava is NOT a promotor. End of story. The idea of Strava checking every segment for safety is of course absurd. Riders risk their lives everyday whether or not they are gunning for a KOM on Strava. Strava are providing a great service that allows endurance athletes to monitor their performance. Of course humans being humans means inevitably the goodness in Strava get’s curruptedsuch that riders want to play chicken with their life just to get a meaningless title on a web site. Is a rider’s life worth a KOM?

  27. dstan58

    Just read an article about a woman who is suing a boy, his parents and the Little League. (http://www.mlive.com/newsflash/index.ssf/story/nj-woman-hit-with-ball-sues-little/11abdefccf0648b0bec073220f647222) She was sitting near the bullpen and alleges that an 11 year old catcher hit her on purpose while warming up a pitcher. My questions: while everyone is entitled to their day in court, do defendants have the opportunity to be made whole when an, ahem, plaintiff brings a frivolous lawsuit.
    How do judges determine legal standing to let these suits come before the bench? thanks.

  28. Chromatic Dramatic

    Jumping right to the bottom (and not having read every comment above), I will point out, that at the time of the tragic accident, Strava did not send you notification that your KOM / QOM was beaten. This only happened in the last few months.

  29. Adam

    As I posted on my Facebook page and as a regular Strava-user for competition and mostly to log commuting miles, I said: It’s a shame for your son and your loss, absolutely, but we all know our responsibilities, the risks involved and the efforts we have to express when we take the roads. I don’t think there is anything wrong with presenting a trophy for individuals to pursue, be it virtual, or not. From a personal standpoint, not having the group rides within arms reach like I have in the past, it gives me motivation to turn my usual ride into something more competitive. That being said, I don’t risk life or limb to do so but in the same breath, I wouldn’t in a sanctioned race either.

  30. Bongo

    So if my buddy takes off out of the group and I decide to try to catch him and crash causing injury is he responsible because he goaded me? Absolutely not, I’m responsible for deciding to catch him. This is an unfortunate accident that was caused by the rider deciding to try to better a time posted on Strava. It was his decision, his responsibility.

  31. The_D

    OK, I’ll play devil’s advocate a bit here:

    What if Strava were for setting speed records in cars?
    What if Plaintiff were a pedestrian’s estate?

    I really enjoy Strava, but for purposes of culpability, doesn’t it matter that:

    a) Strava makes money from subscription fees;
    b) Strava has the technology to reject/not rank KOM’s that require posted street signs to be broken.

    If Strava were never invented, people would still die from cyclists breaking traffic laws. However, no one would profit from popularizing such escapades. Surely, that matters as a matter of public policy, right?

    Again, think of the cars example. A lot of us want cyclists afforded the respect of other vehicles. Perhaps we shouldn’t ourselves ask to be viewed so differently.

  32. Jim

    It seems to me that the parents of this rider got what they were hoping for, a discussion throughout the cycling community. Had they not sued the discussion would have been local at best. I do know that the topic of crazy “Strava” riding has been voiced at a number of our post ride get meetings. Personally, I luv Strava. But I do think that they need to step up with a louder voice and slow down some of the craziness.

  33. rashadabd

    It’s easy to see why this case could be dismissed on summary judgment. It’s going to be tough to prove negligence on Strava’s part.

    For Strava, however, it’s not about this case, it’s about how you best protect yourself and your interests long-term. I think little features like a warning message about following traffic laws, etc. and/or automatically voiding records and times/parts of times where the individual is clearly going over the speed limit for that section of road, etc. goes a long way in convincing a jury, a judge and/or the public that you have thought about these issues and though they are not within your control (completely) or your responsibility, you have done what you can to discourage dangerous conduct. There’s a risk in that this approach undermines the “we had no idea this kind of thing was going on defense,” but I’m not sure many people would buy that one anyway. You always want to leave a tort trial with the jury/judge viewing the plaintiff’s expectation as completely unreasonable and with the impression that you did all that you could reasonably be expected to do under the circumstances. Strava, while they probably aren’t at fault here, still have some room to improve in that dept. in my opinion (and I actually like Strava).

  34. Wsquared

    Strava doesn’t represent in any way that these routes are on closed courses, or that the rules of the road don’t apply because you are shooting for a KOM. They are on public roads with posted speed limits etc. It’s impossible for any participant not to br aware of that. The average 5 year old knows what a speed limit sign is and that a policeman might give you a ticket if you go too fast. The decision to break the law was the riders, as it is for anybody who drives a car at 50 in a 35 zone. Starva didn’t hypnotize the guy or erase his knowledge of traffic laws. There’s no case here.

  35. Jim

    >>>It seems Strava may have some degree of contributory negligence,

    If they are, then their tortious conduct involves selling bicycle gear to hyper competitive douchebags who have bad judgement. If that’s sufficient negligence to sustain a lawsuit, then the bike industry as a whole is in trouble.

  36. jorgensen

    I was looking for a way to log my riding time and miles easily. Found Strava, just started using it. I will probably also get a bluetooth cadence speed receiver too. The ability to keep track of my progress on a repeated course is nice. I am a bit skeptical of the altitude gained and calories spent as the inputs are probably not accurate enough, but they are a fun to look at.

    Having the benefit of age and less testosterone than when I was younger, the competition aspect will stay within. I have already seen what appear to be guys with smartphones mounted on the bike blowing through stoplights recently, so maybe a warning needs to be advised. “Don’t be stupid and if you are, don’t blame us”.

  37. Hank

    I must say I hadn’t thought of the race promoter angle. That made me stop and think.

    But in the end these are not organized races. It’s a social network. Users are responsible for how they choose to use it’s data functions. If you are on public roads, you are responsible to obey the law and only you can be responsible for the risks you take as an adult.

  38. ChristianCC

    I am reminded of a case not too long ago in which a woman was goaded by DJs at a local radio station to drink large quantities of water in order to win a prize. There were other contestants doing the same. The DJs egged them on, ignoring any potential risks from excessive consumption of water.

    The woman participated in a risky activity. The woman died. Her family got about $16 million in the resulting lawsuit.

    I’m not sure I see how Strava is all that different from the DJs. They created the platform, they facilitated the event, they offered the incentive. In both cases, they were taking a normally safe activity, promoting an unsafe version, and ignoring the risk to contestants in order to drum up more revenue and advertising for themselves.

    I think Strava is very vulnerable based on that precedent. They wanted more subscribers and more advertising revenue, and wanted to leap ahead of their web competitors who were offering much safer products. Bikehike was ahead of them in market share, but had removed all dangerous downhills. There were a few other sites (MapMyRide, etc) promoting fitness over competition. Strava wanted to be #1. So they encouraged reckless courses and created a marketplace for easy competition at all costs (the “flagging” feature is a new feature they put in place after the first death) in order to build a buzz. They took a gamble. And two people have now died.
    The rider was in error, but I think it is foolish to say Strava comes out of this clean. Their pursuit of more paying subscribers and advertising bucks blinded them.

  39. Wsquared

    What was the prize the Lady won? All Strava gives is stinking badges with no monetary value.

    Were there signs all arround her telling her how much was safe to drink, like speed limit signs on the road.? Is how much is safe to drink common knowledge? I don’t think so.

  40. High Plains Drifter

    Stop the world … I want to get off.

    Company A encourages risky behavior. But Company A is never sued because they came up with some all-encompassing waiver that no one has ever read.

    Company B, on the other hand, tries their best to provide a useful service to it’s customers. But accidents happen, and because they didn’t have a crystal ball, they’ll go bankrupt defending themselves.

    It’s not competition from China, it’s not government regulation, and it’s not the cost of oil or environmental clean-up or anything else that the pundits on the left and the right complain about that are killing the entreprenurial spirit in this country. It’s lawsuits.

    Regardless, thanks for laying out the case and trying to explain the particulars.

  41. ChristianCC

    “What was the prize the Lady won? All Strava gives is stinking badges with no monetary value.”
    I’m not sure if there is precedent on actual monetary value of reward increasing/decreasing culpability. In the radio contest it was a video game. With Strava is was a “virtual” reward. From my experience, the very offer of a reward would be the most significant factor in determining responsibility, the value of said reward would not be as significant. So basically, $1, a video game, a virtual trophy or a $million bus tokens = reward/incentive. The actually size of the reward might factor more into the ultimate compensation judgement.

    As far as danger awareness, in both cases the “hosts” did nothing to highlight any dangers, operating under the assumption that their customer (in both cases, the contestant was a “customer” and user of their product) should be aware. However, precedent works against them both here too. All those “obvious” warning labels and instructions on products you use everyday are a result of 100 years of product safety lawsuits. To me it is completely obvious that massive quantities of water can cause kidney failure and kill you. But can I put someone at risk with the assumption that they know the same? Can I highlight the fun of an activity in my marketing in an attempt to gain more customers (as radio contest and Strava did) and neglect mention of possible dangers? In the judgement against the station, it was found they could not.

    Also, with Strava, I’m not sure if the conveyance/vehicle matters. If it was a website doing the same thing with cars, trucks, boats, airplanes, parachutes, skateboards, street luge- would that effect the degree of shared negligence? I know it is a challenge for many people, but you need to approach this from a legal standpoint, not a personal emotional standpoint. People think skateboard racing=kids just having fun. Car racing= dangerous criminals. In a criminal case that might have bearing. But this is a civil case. I think the ratio of responsibility between the customer and the company providing the product/service (whatever that is ultimately judged to be) would remain the same regardless of conveyance.

    I find this discussion interesting, because it raises a lot of relevant questions and has a lot of implication for many other cases. These case battles were fought long go with products you use. Which is why Chrysler can’t install cardboard brake pads and say your car is safe, Home Depot can’t sell you a nail gun accompanied by an instructional booklet for playing a fun nailgun game called “friend hunter” and Dyson can’t provide tainted chicken and simply say “guess you should have cooked it longer.” However, in the service industry, there seems to be far less precedent and case law. But as our range of services and vast numbers of such start-ups increase in our post-industrial economy, these precedents will increasingly need to be established.

    Also, as a disclaimer, I am a “former” Strava user. I tried it out about 2 and a half years ago. I considered the racing nature of the site ridiculous and dangerous, was turned off by it, and went with one of their fitness oriented competitors. Those of you who are new to Strava might not be aware that the new “fitness” angle is a very new thing. Back then, downhill racing was a huge part of the site and received the most emphasis and they did not at all shy away from it in their marketing. They glamorized the downhill portions of the Tour de France and had sponsorships that reflected this. Basically, they used that buzz to build the customer base they have now. It wasn’t until people started dying that (probably on advice of their lawyers) that they suddenly became so fitness oriented. I know it is trendy in certain social circles these days to absolve corporations of responsibility and place blame on the individuals, but I think corporate responsibility is as vital now as it ever as been. The reckless pursuit of customer $dollars, new advertisers and that $17 million investment Strava got last year should not absolve them of shared responsibility any more than the pursuit of virtual badges should absolve the bicyclists in the two Strava cases. Shared responsibility- it isn’t all or nothing.

  42. Wsquared

    Christian, your argument may be lengthy, but I still find it unconvincing. Strava is not responsible for clearly wreckless behavior by individuals who knowingly choose to break laws that they are fully aware of.

    The disingenuous reasoning that “everyone knows” not only that drinking too much water can cause kidney failure, or that everyone knows what actually constitutes “too much water” may be true in your neighborhood, it certainly isn’t in mine. Its a lot more plausible that nobody involved in that contest, including the victim, thought for a second that it could kill you. That doesn’t let the organizers off the hook, but it’s basically different than the Strava case.

    If there was some grey area here, say that the riders likely didn’t know what speed limits are or that speeding is illegal and dangerous, thought they were on a closed course, that Strava caused them to believe that they were immortal or that speed limits didn’t apply to them, then there might be culpability. Clearly that wasn’t the case here.

    There is a fundamental difference between being victimized by someone else’s actions or negligence and consciously making a decision that both breaks universally known laws and endangers yourself and others. There is a point where people must be held responsible for their own behavior. There’s no doubt these people knew they were on riding on real roads with big nasty vehicles on them, not playing in “The Matrix.”

  43. ChristianCC

    Fair enough Wsquared. Yours is a more black and white view. Radio station bad, Strava not. I just think shared responsibility applies in both cases, and our legal system generally agrees. To me, the woman in the radio contest was blinded by greed. If you read the stories from it, she commented that her belly had swollen to the point that it was bigger than when she was pregnant. Yet she continued to force herself to drink gallons of water for the chance to win a video game offered by a radio show. To me, that is just as idiotic and obviously dangerous as racing down hills to win the peer recognition and titles being offered as prizes by a bicycle racing website.

    The radio station made a lot of money in advertising and this was yet another gimmick to gain listeners, and they were punished to the tune of $16 million. And the woman paid for her part in the contest with her life. They shared responsibility for the stupidity that occurred. Strava made a $17 million payday recently and gets a lot of money in subscribers and advertising, most done (especially in their earlier days) on the back and at the profit of promoting illegal activity. I’m guess they will likewise be found partially responsible and take a big financial hit. Or, more likely, they’ll just settle both recent cases and let this all quietly vanish so they can move on to their next equity event (something I bet the radio station wishes it had done.)

    The radio station changed its ways as a result of this court action. And no other radio station will ever do something that stupid again. Concurrently, Strava has already changed their ways considerably since the two deaths that have been linked to them, and their competitors (most like MapMyRide had already done so long before) will also change there ways to deemphasize downhill racing and focus instead on fitness and health. The end result in both cases is some people died, some corporations and their executives learn some financial lessons on what is socially appropriate behavior in pursuit of greater profit and what is not, and the world is a smidgen safer.

  44. Rick

    Check out the Wikipedia entry on Tom Metzger. I think the strava lawsuit is similar (though Metzger is a loathsome human being to say the least). It is the liability that is similar.

  45. Mike Wagner

    What if you simply brag about how fast you rode down a dangerous road (perhaps even lied your a$$ off about your abilities) and then some fool tries to best your likely fictitious accmplishment , crashes, and is terribly injured or killed? This sort of liability lawsuit could know no end!

  46. FragranceFree

    “What if you simply brag about how fast you rode down a dangerous road (perhaps even lied your a$$ off about your abilities) and then some fool tries to best your likely fictitious accmplishment , crashes, and is terribly injured or killed? This sort of liability lawsuit could know no end!”

    That would probably get thrown out as the person boasting is not profiting off the activity and intent would be tough to prove.

    To make an example. If I told you to jump off a bridge and you did, I’m probably not civilly liable. If I told you it is a fun bridge to jump off, is totally safe, and everyone else is doing it, I possibly have a little liability. If I charged you $50 to join a bridge jumping club (thereby making you a paid customer,) showed you to a bridge with a bunch of other people who also paid $50, told you all it was safe and fun, showed you the bridge jumping scores of the people I brought to jump off previously, and then offered a prize to whichever of my customers jumped off the best…then my civil liability has increased considerably. This is what Strava has basically done. It becomes a case of shared liability. Just as it should be “common sense” for the people not to jump off the bridge, it should likewise be “common sense” for me to not start a company based around promoting the illegal activity of bridge jumping.

    That all said, the Tom Metger case mentioned above shows that even the very act of encouraging bridge jumping in my first example could still be liable.

  47. Mack

    I keep thinking of the law “competition of speed”. Drivers have this added to their speeding ticket when they are racing. The “competition of speed” would apply to any vehicle. Racing bicycles on an open public road would fall under “competition of speed”.

  48. Sal Ruibal

    Strava, nah, not for me. Too many folks already Strava-ing the bike commuter routes. I like to race once in a while not because I’m fast, but because it is a way to make myself ride harder and/or longer and to spend some fun time with my bike friends. KOM? I’m satisfied as “Master of my domain.” Got a need for dangerous thrills? Volunteer for the Army or Marines and go into combat. They even have ranks and medals there.

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