The Explainer: Whose risk is it anyway?

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.