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Road Rights- Suing Strava

The social network Strava has been linked to two cycling-related deaths. But can the online service really be held liable for its members’ behavior?

By Bob Mionske


On June 14, the San Francisco district attorney announced that cyclist Chris Bucchere would be charged with vehicular homicide in the death of pedestrian Sutchi Hui. Bucchere had allegedly been riding recklessly in an attempt to beat his personal best time on Strava, a social network that allows members to create—and compete for records on—various routes.

Shortly after that, the family of cyclist William “Kim” Flint filed a lawsuit against Strava, alleging negligence arising from a crash in the hills east of Berkeley, California.

This lawsuit will not necessarily be the last. Once the dust settles from the Chris Bucchere trial, Strava may face another lawsuit from the family of Sutchi Hui. So let’s talk about the theory linking Strava to at least one fatality, and possibly two.

William “Kim” Flint was an avid cyclist, an active member of Strava, and had established the record for the fastest time on South Park Drive in Berkeley’s Tilden Park. Flint’s record meant that he was Strava’s King of the Mountain for the South Park Drive segment.

Strava awards King of the Mountain honors for uphill segments of a route only, but somebody trying to establish the fastest time along a route may be riding both uphill and downhill segments, and may be encountering things like stoplights, traffic, and even urban centers along the route.

Strava does not investigate these member-created segments for safety hazards. However, members themselves may flag and even remove hazardous segments—a feature allegedly adopted after the first Strava-related fatality. When a record is broken, Strava notifies the former record holder.

And that is how Kim Flint came to be racing down Grizzly Peak on June 29, 2010. He had the KOM for South Park Drive and one day, he got a notice from Strava telling him that somebody had beaten his record. So Flint attempted to reclaim his title, and on the descent, while riding at least 10 miles per hour over the speed limit, he narrowly missed a collision with a car traveling uphill, braked, flipped over, and was killed.

Nearly two years later, on June 18, 2012, Flint’s family filed suit against Strava, alleging that Strava was at least partially responsible for Flint’s death. Now, many people would conclude that Flint took a risk, perhaps even an unreasonable risk, in light of his near-miss with a car traveling in the other direction, and was responsible for his own death.

But while apparently acknowledging Flint’s own negligence, Flint’s family argued that Strava was also negligent: “They assume no responsibility. They don’t put cones out. They don’t have anybody monitor and see whether a course, or a specific segment, is dangerous,” said the family’s attorney, Susan Kang.

In effect, the family argued, Strava was acting as a kind of race promoter, but was not taking any of the ordinary precautions that a race promoter might take. And because Strava was encouraging cyclists to race on public roads, but was not taking any safety precautions, the family argues that Strava is at least partially responsible for Flint’s death.

Will this argument be successful? If a race promoter organized an race, but never checked the route, or put up safety markers where necessary, or assisted with traffic, or stationed race marshals along the route, and didn’t even have any physical presence at the race, the lack of attention to ordinary safety precautions would almost certainly be considered negligence. But while it’s always hard to say what a jury will decide, I think this argument is a stretch—a very big stretch.

This is a new situation, but it seems to me that Strava is just a social networking site for athletes, albeit one that provides an app for people to track their rides on public roads. Do some of those people compete for the best time? Probably. Does Strava encourage them to beat the record? A bit. But is encouraging somebody to beat a record all it takes to make somebody a race promoter? Would your friends be acting as race promoters if they encouraged you to beat a record? I don’t think so, even if somebody was keeping a record of the results.

This brings us to the Sutchi Hui case. Although cyclist Chris Bucchere is being prosecuted on criminal charges, the family has the right to file its own civil suit against Bucchere. And that raises the question: If the family sues the cyclist, will Strava be a part of this lawsuit also?

It’s a possibility, but I think a lawsuit against Strava would still be a big stretch. Bucchere was alleged to be riding recklessly in an effort to beat his own best time. Even if that is true, what’s the connection between Strava and the allegedly reckless riding that claimed a life? Strava provides an app that allows members to track their rides, and to let other members see the results. But did Strava in any way suggest that members should ignore the law and common sense? Should Strava be held liable when its members misuse the service Strava provides?

These are the questions at issue in both incidents. As I said, the Strava lawsuit raises a new legal question, and the law hasn’t been definitively developed yet, but I think it’s a very big stretch to attempt to say Strava is liable for the risks some of its members may take.

Research and drafting by Rick Bernardi, J.D.
 

This article, Suing Strava, was originally published on Bicycling on August 13, 2012.

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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