Use Strava, Get Sued?

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.

View Larger Map

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.

Comments

Hungry4Shht - 06/28/12 - 3:25pm

This is probably the closest thing to journalism BikeRumor has ever put out. Kudos and great article.

dontpanic1971 - 06/28/12 - 3:48pm

sheesh! Being slow and poor never felt so good!

Michael - 06/28/12 - 3:57pm

I think Strava should do two things to save us from ourselves:

1) Prohibit the creation of any segment where there is a net loss of elevation
2) Prohibit the creation of any segment that traverses an intersection

I’ll confess to going for a downhill KOM (though it was a straight road in good condition and minimal traffic). KOM’s should only be for climbing.

CAADalyst - 06/28/12 - 4:10pm

In a form contract such as the one you sign with strava with regard to indemnity the potential liability for the individual would almost certainly arise to the level of an unconscionable contract since it imposes ruinous liability and there was no ability on the part of the subscriber to negotiate the terms. These type of form contracts cannot hold water when they try to impose such liability.

Quickie - 06/28/12 - 4:25pm

CAADalyst,

Quick question, what would differ between this and any other shrink wrap license where the approach is generally “take it or leave it” with no terms being negotiated? Plenty of those have terms that could lead to ruinous liability. I don’t disagree with you, but unfortunately see the argument presented in the article.

Topmounter - 06/28/12 - 4:27pm

Can we sue Strava when mountain biking gets banned on our local trails?

Apparently the Strava-D-bags believe that screaming “STRAVA!!!” gives them the right-away over hikers, horses and uphill cyclists.

ERROR: Could not read CAPTCHA token file.
ERROR: Could not read CAPTCHA token file.

a - 06/28/12 - 4:29pm

I think Strava is in big trouble over this, I cant see how they can survive it in anything like their current state. The app encourages racing (albeit against the clock) on public roads and trails. This puts innocent third parties at potential risk. OK so this first tragedy has not physically harmed any non-Strava users, but it is only a matter of time (with how popular the ap. has become).
If the ap was aimed at car drivers on public roads there is no question that it would be unacceptable.

olivier - 06/28/12 - 4:38pm

Strava needs to appoint regional Rep Ambassadors who set all of the KOMS. There are so many junk KOMs that it is becoming annoying, and they are worthless. An Ambassador could easily vet out the dangerous ones and focus on the legitimate, quality sections of road or trail that it makes sense to have a KOM on. Users can still create thei own segments, but only for comparison to themselves. There is no question that it is becoming too dangerous and creating user conflicts on our roads and trails.

Petxi - 06/28/12 - 4:43pm

Is there a general lack of common sense in the US? Just wondering.

Theo Schmid - 06/28/12 - 5:15pm

@Michael “KOM’s should only be for climbing.” and if a guy dies KOM chasing in a climb caused by a heart attack or vascular collapse?

Great article, congrats. With all these unlimited lines small print terms & conditions, the world is substantially and unfairly tilted against the consumer. The consumer is everywhere just the a..hole. Corporates squeeze out profits from the consumer, but he has no rights and is always on the weaker end. Just another evidence of it. Something big and structural needs to be changed in today’s world.

ADDZ - 06/28/12 - 5:33pm

I’m so glad I live in Australia where common sense still prevails.

boobie - 06/28/12 - 5:43pm

Why would Strava want to make segments? Probably their strongest defense is that they didn’t make the segment and therefore didn’t encourage it, and if anyone flags the segment as hazardous, they’ll remove it.

Andy D - 06/28/12 - 5:49pm

Oh, America, the land of litigation, when will people assume responsibility for their actions & decisions?Thanks a lot, Nader. Great article guys!

satisFACTORYrider - 06/28/12 - 5:51pm

animals don’t plan their own extinction but … no … not us!

JZ - 06/28/12 - 6:55pm

I am guessing the indemnification language is primarily in there to provide Strava indemnification in the event that they get sued for defamation or copyright infringement arising from something someone posts. It is possible they could have foreseen the very scenario proposed in this article, but if they had foreseen that I think they would also have included better assumption of risk language as well as prohibitions against downhill segments or at least downhill KOM.

I was surprised when I first discovered that Strava permitted downhill segments and wondered about the wisdom in such a choice. I do admit though that I like the downhill segments. I also wonder how much money Strava really given that they probably don’t have a lot of paid subscribers and have not turned to selling add space (yet).

Greg S - 06/28/12 - 7:11pm

Sounds like stop watches could be at risk! Especially if the stop watch is used to do something that is counter to some laws.

Scott - 06/28/12 - 8:14pm

I understand the family’s pain, but could only respect their suit if there was a sum zero result for them. If they sought to change/shut down Strava only and have their court costs handled in the doing, then I would support them.

The Dude - 06/28/12 - 9:25pm

Good news is humans don’t live forever.

don - 06/28/12 - 10:01pm

Glad I have a large umbrella policy, I love Strava even if they do have lame indemnity language in their agreement. I’m certain the product managers and people who created strava don’t realize their own attorney’s put such nonsense in. Any person who has ever worked closely though any legal process has realized how morally corrupt your average corporate attorney is.

Strava fix it and make the noise go away. Ignore the people who believe common sense should be legislated. Fun enablers should be exempt from such nonsense.

I’m going to sue Strava because they keep messing up my carefully laid out training plan. hehehe

don

Brian S - 06/28/12 - 10:13pm

Whenever I ride my bike, I know that I am the one making the choice to ride, and I am the one who makes the choices in how and what I ride. I have used Strava plenty of times. Every time I have attempted to best someone else’s time on a segment I acknowlegde that I am the one choosing to do so. The idea of effectively saying “Strava made me injure myself.” is so childish and immature it’s ridiculous.

Sorry, Flint’s. I’m sad for your loss, but he chose to ride the way that he did. As a cyclist, I hope that he would have agreed with that.

Guest - 06/28/12 - 10:25pm

I have never been a big fan of strava. When I first tried it the privacy settings were hopeless. Tried it again earlier this year, still hopeless and it seems other terms and conditions are a bit odd and changed on the fly. Just use Garmin connect.

vectorbug - 06/28/12 - 10:41pm

So if I’m going downhill and someone (a car, skater, cyclist, bird) goes faster than me, are they responsible for me deciding to pass them? What if they’re heckling me when they pass me?

David - 06/28/12 - 10:42pm

Very easy solution to all this KOM talk. Just make KOMs only valid on category climbs, 4 to HC. Downhill KOMs are not even consistent with the sport let alone safe on sketchy public streets.

nh - 06/28/12 - 11:06pm

I think the easiest solution is to remove all the segments from the US and any other country where people and their family’s sue for their mistakes or lack of common sense.

If you are willing to take risks to get the best time on a website segment that max 10 people care about that is fine. Just accept responsibility for you own actions and don’t blame someone else if things go wrong.

IJBCape - 06/29/12 - 12:25am

Very sad that the guy died! My condolences.

I do love using Strava and believe it has nothing to do with the accident. People have to control their own actions on the bike. There will always be those of us who ride fast and crash with Strava or not. People go for PRs with crappy bike computers all the time. If it got shut down, I bet someone would hack together another free app just like it anyway or use a forum and garmin connect or something. It’s just social tech meeting cycling.

Vitaly - 06/29/12 - 12:51am

I’m not sure why you all are prepared to swallow what this guy wrote as gospel? He and I are having quite a bit of an exchange on topic on his own blog, maybe you should check it out (extra clicks for him, a different point of view for you). Tho as of this very moment, my final comment is “in moderation.”

It’s sensationalism at best and unethical distortion of the law at worst. As a lawyer, I find it rather shameful.

Steve - 06/29/12 - 1:02am

Is it a frivolous lawsuit? Maybe.

But the point a lot are missing is that Strava is posting times to beat that cannot be achieved legally or responsibly. So by posting KOM times, they are (in some cases) encouraging people to break the law or take unreasonable risks. Yes, the individual has the responsibility to decide whether or not to do that, but Strava does not have the right to encourage it either.

MattL - 06/29/12 - 1:41am

It is completely absurd that Strava be held responsible for this mans death. There is absolutely no accountability anymore. People have the right to make good decisions and bad ones, he made a bad one and paid the price. Strava did not make him do anything. The fact that any judge would entertain this lawsuit just shows how sue happy this country is. Nothing is anyone’s fault anymore.

IJBCape - 06/29/12 - 2:01am

Do you mean breaking the law by going over the speed limit Steve? I blame skin suits, aero race frames and wheels for that!

Dustin - 06/29/12 - 7:56am

How many people have died at drag strips.. trying to best the time of another? Is the competing driver, team and their sponsor liable?

Mr. Flint chose.. of his own free will.. to do what he did. This lawsuit is a disgrace to his memory and what he loved doing. I’m sure he would be embarrassed by his family’s litigation.

Tom - 06/29/12 - 10:42am

Uphill only.

Regional ambassadors.

Strava has gotten very popular. Most likely beyond the wildest dreams of its founders. Nothing is ever perfect right from the start. These are two changes mentioned above that make a lot of sense to me.

TJ - 06/29/12 - 11:01am

Part of what makes Strava so great is that it’s a reflection of the community of people that make use of it. Great ideas mentioned here and surely those at Strava are respective of what people would like to see.

It was an unfortunate accident, very sad and hopefully will never happen again.

gratephul - 06/29/12 - 12:24pm

Uphill only is a joke. Some of us “race” responsibly. I’m a mountain biker and I use strava on almost every ride and if I see someone on the trail I stop just like I would if I wasnt using it. The problem is people being assholes when they ride whether they are using Strava or not.

Condor - 06/29/12 - 2:21pm

I’ve ridden South Park Dr in Tilden Park and the accident is no one’s but the riders fault.

It is a gloriously smooth and fast road – BUT, it is extremely easy to pick-up speed very quickly (almost like a Super G ski course) and any rider would know, especially experienced ones who have ridden it like the deceased, that there are some turns and rollers where you can’t see that far ahead. Making stopping in time impossible.

Personally, I find it more challenging to ride up it.

KGr - 06/29/12 - 4:18pm

Just because there are onerous passages in a form contract doesn’t mean they’re automatically invalid for unconscionability. You really are rolling the dice if you want to rely on that.

As far as Strava is concerned, yeah, there is a potential for a lawsuit. From what I’m reading here, it sounds like the KOM feature does not care about speed limits or safe conditions. Furthermore, I’m not hearing about warnings against riding above the speed limit or faster than skill or conditions allow associated with the KOM feature. They’re inciting time trial racing on open, public streets, and that they’re encouraging users to break traffic safety laws, the purpose of which is to protect against exactly the kind of accident that actually occurred.

Can you argue that adults should know better? Of course. However, there’s a perfectly good argument that a reasonable race promoter has a duty to make sure that racing only occurs in controlled conditions and closed courses. The fact that you don’t pin numbers to your jersey and the only prize is the status of a KOM tag just isn’t relevant.

Chis - 06/29/12 - 5:04pm

Agree with all the calls for common sense/personal responsibility. However, that’s not going to happen.

I think Strava can and should be on the hook if they allow the posting of times which demonstrate speeds in excess of posted speed limits and also show riders failing to stop at posted stop signs. They are essentially encouraging people to ride like a**holes. BTW I wonder how many cyclists defending Strava would equally defend a comparable service for car enthusiasts. Imagine an app that encouraged all those BMW M3 and Subaru STi owners to post their fastest driving times on city streets. Pretty sure cyclists would be calling for that to be banned!

chuck norris - 06/29/12 - 7:03pm

I used to enjoy riding, now i only do KOM /chuck

Federico Krill - 06/29/12 - 8:00pm

Hi there guys I live in Central America and I love Strava I’m not shure if it makes any diference if you put on your own workout comment space a legend like this? “My workouts are fully recreational and for my personal benefit, I will not engage in a competition with no one unless a prior agreement with the interested person. Strava and I take no responability for any injury in nobody as a result of he or she trying to overcome any record I set.” I mean I’m taking responsability of my own acts and making them public. But not shure if thats enough or as I said makes any difference. As the many said, I stand for common sense, Knowing and respecting your own country laws and and your human limitations. (sorry if something is missunderstood because of my poor english)

Douche - 07/01/12 - 12:53am

I don’t even use my real name on Strava. And I’m in a far away jurisdiction with a completely different legal system. I think the risks that Strava, or another user, will me sue me are small.

Also, I’m really slow and rarely get a top 10 KOM.

Tom - 07/02/12 - 2:05pm

The whole american “sue-culture” is ridicious at beginning. People simply have their own responsibility….

Mark - 03/13/13 - 2:28am

Sue the school or his parents for not educating him on common sense!
This “some one else is to blame” culture is crazy,
I agree with Tom, people need to have their own responsibility

JC - 10/27/13 - 2:48am

It seems to me that its only a matter of time that additional types of lawsuits will occur, similar to the illegality of using a cell phone while driving, such as some lawyer suing the bike rider for using his Strava while riding, thereby contributing to an accident. Just as when there are accidents, lawyers research whether the driver’s phone was engaged in texting or a voice call during the accident. The same thing could occur to Strava users.
Even more likely, I’m sure that the someone in a bicycle accident case will use Strava speed and GPS evidence in court to show how the cyclist was riding on public roads (good or bad). I don’t think its a stretch for some lawyer to subpoena Strava to get evidence of a cyclists generally ‘unsafe’ driving. I can see on lots of Strava KOM segments, where it shows that the cyclist obviously didn’t stop at stop signs and snaked around intersections, which proves they didn’t stop. There are many other ‘bad driving’ habits that would likely show up on someone’s Strava account. After an accident, the GPS could be seized and account information could be retrieved from the device, without the consent of the cyclist.
In summary, I think its very sad that the things I mentioned are inevitable and should be taken into consideration by all riders who have something to lose.

Post a comment:

Comment sections can be a beautiful source of knowledge, conversation and comedy. They can also get pretty ugly, which is why we've updated our Comments Policy. If your comment isn't showing up or suddenly disappears, you might want to check it out.