This is a slightly out of character post for this blog and perhaps one of the more boring ones for most of you, but I felt the need to say the following. Given that Strava is such a huge part of our cycling community, especially here in the Bay Area, this is still somewhat cycling related, tho tenuously, I admit.
Yesterday, this blog post was brought to my attention by a teammate. And in case it gets taken down, it was also picked up here for whatever reason.
The author of the blog is Dean Frieders, an attorney in Illinois. Personally, I wasn't too fond of the absurdities he decided to present as some legal analysis worth merit, so I felt the need to reply. The problem with Dean's blog is that he likes to really be in control and moderate each and every comment. So much so, that he edited my first comment without even asking me. My last comment, which was made last night hasn't yet made it to his blog, while another comment posted later is already there. Perhaps Dean is simply taking his time trying to think of a witty response, or he just had enough of me and decided to silence me through moderation. Or maybe I've jumped the gun and he's going to release my comment at any moment. In any event, I figured I'd recreate our little exchange here. The first comment made by me is in the original form, not the edited one released to Dean's blog. I haven't edited any of the comments, other than a few annotations in brackets.
You're not a lawyer, are you? [Before I found out he actually was] If you are, by some miracle, please turn in your law license and never set foot in a courtroom again.
I'll do you the favor of taking this apart piece by piece:
" Strava is a big company, with significant revenue." I'd like to see where you pulled this from? It's a startup funded mostly by investor $. Do some research before going out and making asinine statements.
Users getting sued by users:
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.
"What is to stop someone who is injured while trying to beat your Strava time from suing you? Nothing." - This statement is deceptive. Yes, anyone can file crap in court, that doesn't mean that it states a valid claim and there are thankfully statutory provisions which allow for sanctions in such actions.
"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.
Here, it's absolutely clear you have no clue what the hell you're talking about. For the indemnity to kick in, there has to be a valid claim. 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!