I’ve previously blogged my concerns about the Strava user agreement, including concerns that Strava could, in theory, file a suit against its own users, seeking to have the users defend/indemnify Strava from 3rd party claimants. (And yes, I am aware that defense and indemnity are different concepts.) I also suggested that, based on the language of Strava’s user agreement, it was building in a number of unique tools that it could use, in litigation, against its own users (who presumably do not read the legalese in the terms and conditions).
At the time of that writing, there was at least one learned legal professional who suggested that perhaps I was suffering from cranial-rectal interference and was not properly reading the Strava user agreement.
As it turns out, I’m going to claim to have been prophetic. Strava has now filed a countersuit against the user, in the lawsuit filed against Strava. I’ve tried, but have not yet been able to get a copy of that countersuit filing. Here’s the full story from Velonews:
Strava, the GPS-based social competition cycling website, has responded to the lawsuit filed against it in June of this year with a countersuit of its own.
The original suit by the family of William Flint, who died aged 41 in 2010 chasing a Strava KOM ranking on a descent in Berkeley, California, came on account of the family’s assertion that Strava assumes “no responsibility” for the safety of its users.
The family’s attorney, Susan Kang, said at the time, “They (Strava) don’t put cones out. They don’t have anybody monitor and see whether a course, or a specific segment, is dangerous.”
Strava’s initial public response, issued by spokesman Mark Riedy, asserted that, “Based on the facts involved in the accident and the law, there is no merit to this lawsuit.” That response now also consists of a countersuit, filed this week in the San Francisco Superior Court. The company denies each of the 26 individual charges laid out in the Flint family’s original lawsuit.
Strava, in targeting Flint’s father of the same name, says that Flint Jr.’s original electronic signature, given when he joined the website, “excludes Strava from responsibility of legal claims or demands,” according to an article on the website of Bicycle Retailer and Industry News.
The countersuit asserts that Flint Jr.’s death was due to his own negligence, and that Flint Jr. was, Strava claims, riding on the wrong side of the road and over the posted speed limit.
Flint Jr.’s GPS data indicated that he had been traveling 35 mph in a 25 mph zone.
So…Use Strava, Get Sued? Well…at the very least, Sue Strava, Get Sued.
The case referenced there is somewhat unique in that it was a Strava user who crashed while trying to get a record, and died in the crash. His family/estate has sued Strava, claiming that Strava is responsible for his death (basically because they created a situation where he was encouraged to ‘race’ irresponsibly on the street, to get a King of Mountain). Now, in that case, I have a hard time believing that a jury will hold Strava responsible for the conduct of a rider who may have engaged in negligent conduct (35mph in a 25mph zone?) and was injured…well, killed…as a result. I suspect–and it’s just a suspicion–that a jury would think that the cyclist was responsible for his own injuries in that instance.
On the other hand, let’s look at the other Strava claims out there. There is a well-publicized instance where a rider, engaging in a Strava ‘competition’, hit and killed an innocent pedestrian. (Look at the end of that story). In that case, the cyclist is actually being criminally prosecuted. But let’s got a step further. Let’s assume that the deceased pedestrian’s family sues Strava for their role in the pedestrian’s death there…the very same language that lets Strava countersue in the self-inflicted injury case also lets Strava countersue in the dead pedestrian case. This is just my opinion, but I think that under the right circumstances, a jury could buy the argument that Strava is partially responsible for the death of an innocent pedestrian hit by a cyclist in the midst of a Strava-inspired ‘solo race’ effort on a King of the Mountain course.
Also just my opinion…but the way Strava’s user agreement is written, I think there’s a reasonable argument that Strava could require its users to defend and indemnify Strava from such a claim. So what does that look like–and how far does the liability go?
- Cycle Charlie, an unemployed avid cyclist with no real assets looks on Strava, and sees that someone has taken his King of the Mountain on an uphill/downhill course.
- Cycle Charlie gets all hopped up on Gu, and goes out to reclaim his KoM title.
- Cycle Charlie is blasting around a blind corner at full-tilt-boogie, in excess of both the posted speed limit and the speed which is reasonable for the conditions.
- Cycle Charlie blasts into an innocent _____ (nun? med student? other innocent?) who is crossing the street, in a crosswalk. Said innocent is killed.
- Innocent Pedestrian’s family looks at the situation and decides to sue Strava, since Cycle Charlie really has no assets to go after.
- Strava, after getting sued, uses the user agreement to file a suit against Cycle Charlie, bringing him into the suit for indemnification.
I think most people would intrinsically be ok with that…Cycle Charlie rode in a negligent fashion, and we’re ok with him being on the hook for it.
What if we take that same circumstance and tweak it a bit. What if Cycle Charlie was riding entirely cautiously, and a jaywalking pedestrian stepped out into the roadway in front of him? Accident is the pedestrian’s fault, but nonetheless, the pedestrian sues Strava. Even though Cycle Charlie isn’t at fault, he still may be on the hook to defend Strava in the lawsuit. And even if the lawsuit ends with the right outcome (jaywalking pedestrian loses), it could be tens or hundreds of thousands of dollars of legal fees to get to that result.
Or what if we take it a slightly different way. Go back to the original example with Cycle Charlie riding negligently. Remember that he was riding negligently to reclaim his KoM title? What about the cyclist who took the KoM title away? If Safety Steve took the KoM title that Cycle Charlie was trying to reclaim, is Safety Steve on the hook for indemnifying Strava in the lawsuit?
Or to put it more directly…if you ride in a safe fashion and set a record, and someone else rides negligently to break your record, injuring someone in the attempt…are you on the hook to defend Strava from a lawsuit that, at least in some ways, arises out of the content that you posted on Strava? (Again, please remember that even the lawsuit is ultimately dismissed or defeated, that doesn’t eliminate the specter of costs of defense and legal fees).
What’s my underlying point here? I’m not certain what the ultimate outcome of this Strava-related litigation will be. Depending on the facts and the jury, I can see some cases going in a direction that Strava doesn’t like–the innocent victims may present a compelling case. But frankly, I’m less worried about Strava than I am about Strava users. What will the outcome of these cases be for the Strava users, and how far will the defense/indemnification issues go? Are you a Strava user? Have you read their terms and conditions? Are you comfortable with all of them? Do you understand all of them?
My underlying point is that I think all users of Strava would be well-served to understand what they’re agreeing to when they click into the system, and when they post content. And I go back to my original point from several months ago…if Strava didn’t mean to put their users on the hook, why include the language that they included in their user agreement?
It’s a brave new world. Think through the implications of your actions.
Insert an appropriate “this does not constitute legal advice and is mere speculation” disclaimer here.