Use Strava, Get Sued?

UPDATE FROM 7/6/12:

Just saw this story on Bike Radar about thieves using Strava and similar websites to trace owners of fancy bikes back to their houses, by looking at posted routes.  Craaaaazy!

End of update.

Many folks in the cycling world have seen and commented on the recent litigation initiated against Strava, relating to the death of a cyclist.  Bike Radar’s coverage of the litigation is here.

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.

Those twisty, turny roads are the roads that he was riding at the time of his accident.

Many 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 Raster 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 KoM Rider 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.  (It almost certainly is possible to make such a waiver enforceable, with the “other users” being what the law refers to as intended third-party beneficiaries of the waiver agreement).

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.  For those who might think that hiding behind a username and ghost email address offers some protection, look how successful that was for the people who thought they were untraceable when illegally downloading music.  If Strava wants to find a user, with the information they have (IP address, emails, when and where you ride, who you talk with online, etc.), they’ll find you.  A few simple changes would help this situation a great deal.

11 thoughts on “Use Strava, Get Sued?

  1. Please, explain to your reader what would the alleged “cause of action” be against a fellow Strava user. Is it negligence? In which case the plaintiff would have to establish duty, breach of duty, proximate cause and damages. What duty of care do I owe another member/user of Strava? I certainly can’t think of an intentional tort that fits into your made-up liability scheme. So, no, users cannot get successfully sued by other users.

    “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.” – I had no idea you were a member of the Strava defense team. I certainly don’t have great insight into the defense either, but there is a difference between having a claim dismissed on a demurrer, for failure to state a cause of action (which is what Strava is likely to do) and assert the waiver as an affirmative defense, thereby admitting that the plaintiff has stated a valid claim, but that the claim is defeated by a contractual provision. The latter being called a motion to dismiss.

    “Of note, Strava could have chosen to include language here to waive claims against other riders, but did not do so.” – I’m not so sure that it could have done that. It would seem that for me as a Strava user to waive my claim against another Strava user, the users would have to be in some sort of horizontal privity of contract.

    Indemnity:
    If you do something on Strava which results in a valid claim, then you should pay the resulting damages. California Civil Code §2772 provides: “Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.” If there is no legal consequence, there is no way that one party can invoke the indemnity provision.
    As an analogy, I give you Craigslist. If you post a discriminating advertisement and Craigslist gets sued, under an indemnity provision, you would have to pay the judgment and the attorneys fees if a judgment is rendered against CL as a result of your post. However, if there is no cause of action, i.e., no claim, there is no “harm”/consequence from which you have to indemnify Strava or CL.
    You were apparently too busy reading what the indemnity provision says to realize what it doesn’t say. The provision doesn’t say you agree to DEFEND Strava from any claims. If that was the case, I would agree with you that it’s a horrible provision because users would be on the hook from the outset. As worded, the indemnity provision is fine and not overbearing.
    Strava should NOT take out the indemnity provision simply because you are too short-sighted to see its broader implications. If someone slanders someone in a comment on Strava, or harasses someone on Strava in a way that could be actionable in court, and indemnity provision is a must!

    • Vitaly,

      It is cute that you tried to submit the same comment under a number of different usernames. One of the wonderful things about the bully pulpit of a blog is that I can see things like usernames, IP addresses and the like, and can see when someone is acting in such a fashion. I hope you don’t mind that I edited your post–I’m not certain why your comment was dripping with quite so much venom, but I decided to spare you from looking more inconsiderate than you otherwise would look, by deleting the ad hominum comments.

      As for your question about what cause of action one Strava user may have against another, I would assume that it would not be an intentional tort. It is unlikely that there would be assault or battery arising out of a Strava post. Given your mastery of the English language and our system of laws (shown in large measure by the colorful comments that I edited out of your post), I’m sure you understand the difference between intentional torts and negligence. I don’t think it is too terribly hard to envision a circumstance where one could violate even the most basic duties of care between two unrelated parties by creating a Strava route that exposes another rider to an unreasonable risk of harm. Perhaps more importantly, you missed the whole point of the post. I’m not suggesting that the lawsuits against Strava are meritorious. Writing a blog post with detailed legal analysis as to Strava’s risk might be interesting to me, but would be decidedly less interesting for my readers. The post is about identifying a risk that very few Strava users out there recognize…the risk of litigation arising out of their use of the app. Is litigation likely to be initiated, or likely to be successful on a user-to-user basis? Hopefully not. But it does not take any stretch of the imagination to see how such litigation could result, nor does it take a great legal mind to devise a theory upon which such a claim could be based.

      Can we protect against every petty, small-minded or frivolous lawsuit out there? No–sadly, we cannot. But Strava users are doing themselves a disservice if they don’t at least consider the ramifications of their actions. Strava has certainly considered it…hence their terms and conditions. When someone gets sued, they may be comforted to know that the claim is subject to dismissal…but I’d prefer to not be surprised by a lawsuit in the first place. It is only by identifying risks that we can minimize or mitigate them. The idea of the blog post is to get people to think…not to give legal advice.

      Am I a member of the Strava legal team? No–afraid not. If I were among Strava’s legal counsel, their terms and conditions would be far more precisely drawn. But does it take some insider knowledge to forecast that they will assert the waiver as a defense? Not really. Will that defense be asserted as a motion to dismiss, an affirmative defense or something else? It will likely be asserted in just about every way they can assert it. Here in Illinois, an attorney would likely start with a motion to dismiss claiming that the lawsuit is affirmatively barred by other legal matter. Oh, and “admitting that the plaintiff has stated a valid claim” isn’t an entirely accurate description, Vitaly…you’re simply admitting that for purposes of the motion. It is not an admission that can be later used against you.

      If you genuinely believe that indemnity does not apply until a judgment is entered, or that Strava could not invoke the indemnity, as it is worded, to force a user to pay their legal fees incurred in defending a suit based on user conduct (whether it be from comments posted on the website or from routes posted on the website), then…well…there’s no polite way to say this. You’re wrong. I agree that the indemnity is poorly worded, but it appears to be Strava’s intention to put users on the hook for any claims or damages arising out of user conduct, as they say “including reasonable attorneys fees.” The reference to reasonable attorneys fees, while inartful, undoubtedly refers to Strava’s own legal fees. (As an aside, I have no idea why people do not understand that slander refers to oral statements, and libel refers to written statements. But unless you’re uploading insulting audio clips to Strava, it will be pretty difficult to slander someone on their website.)

      Anyhow, thanks for writing in. It is clear that the post did what it was intended to do, by making you think. Even though I don’t agree with your analysis (or your rhetorical style, in resorting to insults in the absence of strong arguments), I appreciate that you thought about the issues.

      • I actually tried to submit only once, but then was prompted to login (I forgot I had a WP login). Didn’t see it pop-up, so tried to put it in again, then saw it was awaiting moderation (that’s pretty lame by the way). Computer glitch, nothing more. I’m glad you only let one through. I hate when the whole “multiple-post” thing happens. Tho I wish you didn’t edit my reply, because now I feel like I have to put the unedited version on my own blog and rip this apart word by word. But I digress.

        Why did you delete the part where I corrected you and said that Strava was a startup funded by investor $?

        “I don’t think it is too terribly hard to envision a circumstance where one could violate even the most basic duties of care between two unrelated parties by creating a Strava route that exposes another rider to an unreasonable risk of harm.” – That’s the point I’m making. There CANNOT be a duty of care between unrelated individuals. “Duty of care” is not some ambiguous thing. It’s a term of art defined statutorily or via common law. It simply does not exist in the context in which you present it. Period. If you think I’m wrong, please provide an example or a case that says otherwise.

        “Here in Illinois, an attorney would likely start with a motion to dismiss claiming that the lawsuit is affirmatively barred by other legal matter. Oh, and “admitting that the plaintiff has stated a valid claim” isn’t an entirely accurate description, Vitaly…you’re simply admitting that for purposes of the motion. It is not an admission that can be later used against you.” – Illinois! How fortunate, one of the states where I’m admitted. In Illinois, a lawyer worth his salt would first file a 2-615 motion to dismiss for failure to state a cause of action before going on to file a 2-619 motion to have the case kicked on an affirmative basis. Of course, there’s this unique 2-619.1 motion, but some judges are not keen on that (Cook County’s Kathy Flanagan comes to mind) in my experience, as in the 615 motion, you’re basically saying the plaintiff is full of shit, and in a 619 motion your saying “the plaintiff has a cause of action but is SOL because of….” But this is one of those side issues that’s not really central to your post anyway.

        Thank you for the slander/libel correction, I of course mean the latter and have no issue admitting I was wrong in that statement.

        As I said in my original reply post, if the indemnity provision has the word “defend” in it, you’d be correct in some of what you wrote. As drafted, however, it does not obligate the user to pay for the ongoing defense. As far as whether the fees to have a frivolous suit dismissed could be charged to the user via this indemnity agreement, that’s a far stretch. You realize what type of legal gymnastics would have to happen here for this to even come into play, right?

        As I read this: “claim or demand, including reasonable attorneys’ fees” The fees go with the “claim or demand,” and don’t pertain to the cost of the defense. This seems pretty clear to me, but if you feel it’s ambiguous, that’s great! You probably know that ambiguities in indemnity provisions are interpreted against the drafter, as all contractual provisions.

        You claim that your blog post is a service to Strava users, but it isn’t. It doesn’t even come close. You raise a bunch of non-meritorious issues. If the main point you are trying to raise is that using Stava could expose someone to a frivolous lawsuit, well unfortunately so can doing pretty much anything else, from taking out the garbage to washing your windows. Congrats on being one of those sensationalists with no merit or substance.

      • You’re still missing the point. I don’t have a particularly compelling need to determine which of us is the bigger e-badass of an attorney via blog comments. If you feel compelled to “rip this apart word by word,” then by all means, be my guest. One of the marvels of the internet is that it can be a forum for anyone, no matter how uninformed they may be. If you’re on a cycling blog and feel compelled to name drop and cite to the Code of Civil Procedure–well gosh, I just can’t help you there. Perhaps I can start a legal blog and we can debate this further…but since I practice law here in Illinois on a daily basis, I really don’t have a need to justify my professional abilities online. I’m really not sure why you have such a persistent bee in your bonnet. Frankly, I’ve never understood why people posting online feel a need to attack others, rather than have a reasonable, rational dialogue.

        If you’re comfortable looking at an agreement that obligates you to indemnify a company based upon your conclusion that the language is ambiguous and will thus be construed against the drafter, again, more power to you. The risk that I’m describing in my post is a real potential risk–it certainly is no more tenuous of a legal argument than the underlying ‘real’ claim. Would such a claim survive? Will the underlying claim survive? The likely answer to both questions is no. That said, Strava’s terms show that they are thinking about the issue. Strava’s users should be thinking about the issue too.

  2. Wankers. How about people start taking some responsibility for THEIR actions and stop trying to get a free ride in life by ripping (suing) others, law and litigation makes me sick. Grow up people

    • Jarrod–I couldn’t agree more. I have a hard time finding merit in the underlying (real) litigation, based on what is publicly known about it at this point. The potential for senseless litigation could have a real impact upon cyclists’ recreational pursuits, which is totally unfortunate.

  3. As to v1talyg’s and lawfarm’s comments: I do not see a cause of action against a third party Strava user (”KOM” or otherwise) based on negligence. There is no duty of care at issue. Strava’s user agreement is most likely not going to create liability for a user by deflecting it from Strava to that user who gains ”KOM” status. The issue in the original Flint / Strava lawsuit is about promoter liability. There might be something to it. But, honestly, I am not well versed in California law or exactly what the Flint family is alleging in their lawsuit against Strava.

    • It’s an interesting question…that’s for sure. I do know of cases where two parties have been engaging in illegal drag racing and a crash results, and occupants of one car sue the driver of the other car. I’m not aware of any where one driver sued the other. By analogy, if what Strava is doing is encouraging illegal drag racing, albeit with two riders going at different times…it is a stretch, but it is an interesting question. The more interesting question, to me, is regarding the indemnification language in Strava’s agreement–and what they were thinking when they inserted that language.

  4. Pingback: Strava Countersuit. What does it mean? | ridingagainstthegrain

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