Kim Flint was an avid cyclist who died on June 19, 2010, doing what he loved-cycling and competing. The question is; “Was anyone to blame”?
The more Kim rode, the more he challenged himself, and the faster he wanted to go. Kim would measure his results on Strava, which allows you to “Track your progress and challenge your friends.” Strava, is not only a social network site for cyclists, but more importantly Strava tracks your performance on segments of popular routes. Specifically, Strava compares your time on a specific segment to the times of everyone who has ridden it before and uploaded it to Strava.
For example if you ride up the Key Biscayne Bridge in Key Biscayne, Fl, Strava will automatically rank you on a leader board consisting of all other riders who have ridden that segment. The first-place finisher is designated the King of the Mountain, or KOM, and with runners-up identified by numbered trophies. Even if you’re nowhere near the top, you win a PR icon if you achieve a personal record.
In an excellent article written by David Darling of Bicycling Magazine, Darling details the life and death of Kim Flint, and the emergence of Strava. If you are fortunate enough to get a KOM, Strava will send you an email or text alert if someone has taken away your KOM.
The alert is a bit of a teaser, and goes like this: “Uh oh! [So and so] just stole your KOM….Better get out there and show them who’s boss!” (The company has since changed the alert to “Get out there, be safe and have fun!” And the current notice is sent only for segments with a grade of 0 percent or more–flats or ascents.)
On Saturday, June 19, 2010, Kim set out to avenge his KOM. The reason was simple, 4 days earlier a rider had taken his South Park Drive KOM, beating Flint’s record by four seconds. Thus, Flint set out to get his record back.
Kim was going around a curve, lost control, tried to stop, and couldn’t. He rammed an SUV, flew 40 feet in the air. Flint suffered severe injuries to his head, neck, spine, ribs, femur, liver, diaphragm, and right lung. Kim Flint died chasing his record.
Kim’s parents felt Strava led to their sons death, and filed a wrongful death lawsuit on the last day before the two-year statute of limitations expired.
Again as noted In Darling’s article, Kim’s Parents alleged that Strava owed their son a duty of care, and that Strava:
“breached their duty of care by:
(1) failing to warn cyclists competing in KOM challenge that the road conditions were not suited for racing and that it was unreasonably dangerous given those conditions;
(2) failing to take adequate measures to ensure the KOM challenges took place on safe courses; and
(3) encouraging dangerous behavior.”
They concluded that, had Strava taken the necessary measures, “Kim Flint Jr. would not have died as he did.”
Strava’s lawyers moved to dismiss the lawsuit, and alleged:
(1) that cycling contains an implied assumption of risk; that, when he joined, Kim Flint expressly assumed these risks by agreeing to Strava’s terms and conditions (which included the words: “in no event shall [Strava] be liable to you or any third party for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with… your use or misuse of the site”);
(2) that Strava had no control over Flint’s activities, nor the situations and circumstances in which he rode, nor any knowledge of them before he uploaded data to the site; and
(3) that Strava was immune from liability under the Communications Decency Act (CDA).
Kim’s lawyers argued, Strava’s terms-of-service agreement constituted an unenforceable “adhesion contract,” as potential users “had no power to bargain the Terms with Strava and, since it was on the Internet, had literally no one to bargain with.”
SUPERIOR COURT JUDGE Marla J. Miller ruled in favor of Strava, dismissing the case on the grounds that bicycling implies an assumed risk.
As you might imagine, I disagree with the court’s decision. Assumption of risk, does not and should not mean that one assumes the risk of hidden dangers. Thus the case should have been allowed to go to the jury to determine whether Kim Flint understood the risk. Odds are the jury would of found he did, but nonetheless it should have been decided by a jury of his peers.
What if Kim was a first time cyclist, who was not familiar with the route? would he have understood the risk?
As a lawyer that specializes in representing those that have been injured in bicycle accidents, I have represented cyclists in all types of cases; ranging from those injured in races to those injured on weekend rides. All races require riders to sign releases such as Kim Signed. However, the big difference is that the race promoter has inspected the course for hazards, and the promoter does not conceal any known dangers. Strava, while sanctioning a virtual race does not do any type of pre race inspection and does not warn riders of potential hazards.