Can A Website Be Liable For Promoting An Inherently Dangerous Activity?
I am a Boulder lawyer and in my off-time a cyclist and avid Strava.com user (Strava.com allows cyclists to map and clock their times and speeds using GPS and upload them to its website.) Just this past Sunday, I was on the road in 100 degree heat trying to beat a few of my segment “personal records” – one segment in particular I wanted big time. I pushed myself, got to the top and thought “I can’t wait to get home, throw this ride on Strava and see how I did.” Alas, I was off my best time by two seconds … next time. Strava has motivated me to ride at times when my will power was susceptible to the thought of a cold beer. However, I have often thought how Strava could (and almost undeniably does) “motivate” cyclists to ride aggressively in order to break records and rank on particular segments created by its members.
Yesterday, the family of Kim Flint, a cyclist who died when he drifted into the other lane and hit a car while riding his bicycle around a curve brought a lawsuit against Strava, Inc. claiming the popular site was negligent in promoting and encouraging cyclists, like Mr. Flint, to compete on dangerous roads in order to gain standing on the website.
So, what, if any, responsibility does Strava have to its cycling members? Well, there is the product itself: an online athletic data collection and social networking site. But the data is based on a member’s activity, in this case cycling – bottom line is you have to cycle to capture data in order to upload data to the site. So, a necessary component of Strava is cycling. Strava is so popular because of its “segments” – portions of rides/routes Strava members create and then compete on. Strava itself does not create these segments. What Strava does is collect member data and organize and present it on leaderboards for each segment.
In May, 2010, Strava.com’s Terms made no mention of associated risks of cycling. Currently, Strava’s Terms reads as follows:
YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES, WHICH GENERATE THE CONTENT YOU POST OR SEEK TO POST ON THE SITE (INCLUDING BUT NOT LIMITED TO CYCLING) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF STRAVA OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT STRAVA DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, GROUP RIDE OR EVENT THAT UTILIZES STRAVA’S SITE. www.strava.com June/2012
But does it matter that Mr. Flint did not expressly agree to assume the risks of cycling when he joined Strava.com? Probably not. Mr. Flint was an avid cyclist. He would have known the associated and inherently dangerous risks of cycling – and more specifically, the risks of cycling at a high rate of speed down a steep grade that is traveled by cars. Mr. Flint had ridden the particular “segment” before (indeed was riding for the sole purpose of regaining his position as the fastest rider on that segment) and would have known the risks inherent on the ride.
According to Frances Dinkelspiel of Berkeleyside News, Mr. Flint had raced down South Park Road (the rode on which the collision occurred a few weeks later) on June 6, 2010 in 2 minutes and 7 seconds, reaching a top speed of 49.3 mph. The speed limit on South Park Drive, which is a steep grade, is 30 miles per hour. “49.3 mph, on a bike. How I find religion on Sunday morning,” “Set new personal records – Centennial, 3 Bears, some others, even a KOM (King of the Mountain) on south gate descent!” Mr. Flint wrote on June 6.
Under California law, primary assumption of risk arises where an individual voluntarily participates in an activity or sport involving certain inherent risks – in this case, cycling. Cycling is an inherently dangerous sport. For example, in order to obtain a cycling license from USA Cycling, a rider is required to sign an “Acknowledgment of risk, release of liability, indemnification agreement and covenant not to sue” which states: “I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT…”
There is no doubt that Mr. Flint’s death is a sad event. However, Mr. Flint’s death was precisely the type of injury he assumed the risk of encountering while cycling. There is no question that Mr. Flint voluntarily chose to ride his bicycle – nor that he chose to ride in the manner he did. It also seems quite clear that he knew of and accepted the risks associated with cycling – Mr. Flint was an avid cyclist, joined a website dedicated to cycling and rode to achieve cycling “records.” He undoubtedly was aware of the fact that the streets on which he rode, whether “segments” or not, were full of hazards including moving cars. This, along with what will come out in discovery; Strava should not have to prove much more to establish that Mr. Flint knew of and/or appreciated that a “serious injury” or death could result from his activity.
It is important that companies which promote or involve potentially or inherently dangerous activity be sure their terms of service or user agreements contain adequate warning and release language. Like many other companies in the heath and fitness arena, Strava is a growing company with increased exposure – and with increased exposure comes…well…increased exposure. While I am not sure what kind of legal budget or threshold for litigation the company has, especially in light of the fact it is currently involved in a patent lawsuit, I would look for Strava to vigorously defend this case to set an example for similar claims going forward.
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UPDATED: 6/19/2012 7:16pm Strava emailed its members with the following message:
Posted by Strava Admin on June 19th, 2012
We’ve updated our terms and conditions, and we’re doing everything we can to get the word out. You’ll also see a notice on your dashboard when you log in to strava.com.
What’s changed? We’ve grown a lot and have expanded our products and services since our terms were last updated. The updated terms clarify things related to our mobile apps, as well as real-world races and events that you might participate in that use Strava’s site.
That short description isn’t meant to be a substitute for the real deal, so please take the time to read the revised terms and conditions found at strava.com/terms. If you use one of our mobile apps, please download the latest version to access the updated terms from inside the app. Then, get back out there and go for a ride or a run.
The team at Strava