In a video that was widely circulated last week, a bewildered young woman pedals down Lake Shore Drive, hugging the left median as cars barrel by. She looks terrified.
She is not wearing a helmet.
She is riding a Divvy bike.
For the corporate lawyers at Alta Bike Share, Divvy’s Oregon-based operating company, that video should be alarming.
It appeared less than a week after news broke that Lakeshore Bike, a North Side rental company, agreed to pay $350,000 to settle a lawsuit brought by Winfield Cohen, a biker who suffered major injuries after he was doored in Lincoln Park last year. Cohen claimed the company violated its own unwritten policy by not providing him with a helmet or safe riding instructions.
Lakeshore Bike did not admit fault in the settlement, nor do settlements act as binding precedent. But the facts of the case — failure to provide a helmet, failure to provide safety instructions — echo the circumstances of the 679,925 rides that Divvy had provided as of Thursday morning. When riders climb aboard Divvy bikes, they’re given five recommendations — wear a helmet, don’t bike on the sidewalk, yield to pedestrians, ride with traffic and follow traffic laws — and not much else.
So could a Chicago bicyclist sue Divvy after a crash, and get a pile of cash? The lawyer’s answer, as always, is “it depends.” But interviews with a handful of attorneys around town point to a consensus that, under the right circumstances, Divvy could have a lawsuit on its hands.
Jeff Kroll, a partner at Salvi, Schostok & Pritchard who negotiated the settlement for Cohen, sees similarities between the case he brought against Lakeshore Bike and Divvy’s policies. “I don’t think they’re dissimilar in the sense that you’ve got companies in the business of making money, but they’re not taking the extra steps to make sure people are safe,” Kroll says. “I think this is going to be Pandora’s box. With more pedestrians being hurt, more dooring accidents, the question will become, what responsibility does Divvy have?”
It also seems clear that Chicago plaintiffs’ attorneys have taken note of the Lakeshore Bike settlement’s implications for Divvy. “If you’re a personal-injury attorney and you’ve got a client injured on a rental bike who didn’t know the rules of the road, someone who’s unfamiliar with city biking and wasn’t given a helmet, you at least have to consider bringing in the rental company,” says Brendan Kevenides, a partner at Freeman Kevenides, a firm that specializes in bicycle crashes.
Putting customers who are often unfamiliar with the contours of urban biking on the city’s busiest streets strikes some as a clear recipe for disaster. “Harm is totally foreseeable,” says Christine Hurt, professor at the University of Illinois College of Law. “A kiosk in downtown Chicago that doesn’t provide bike helmets? I think that’d be a pretty good fight.”
Although the program has cultivated a reputation for welcoming inexperienced cyclists onto city streets, only seven accidents have been reported to Divvy since the program began in June, according to Elliot Greenberger, Divvy’s Deputy General Manager. That’s about one in every 100,000 rides, a proportion that appears significantly lower than the crash rate for the general biking population. Although only 1.6 percent of Chicago’s commuters bike to work according to Census data, bicyclists were involved in 9.8 percent of all reported traffic accidents in 2010.
Until Wednesday, Alta might have been able to argue that it’s not feasible to provide helmets at unmanned stations. That’s when Boston announced plans to dispense helmets through vending machines at its bike-share stations. Boston’s Hubway program, which is also operated by Alta, will rent helmets to riders for $2 and sell them for $20. Now, it’s more likely that Alta will be held to that standard in the six other U.S. cities where it operates.
Alta’s Divvy contract requires it to indemnify the city against any losses for injuries related to bike use — meaning City Hall is unlikely to be on the hook in a lawsuit.
Alta didn’t respond to requests for comment on its liability. When asked about the potential for lawsuits, a spokesman City Hall pointed to Divvy’s waiver form, which disclaims any responsibility for an accident. (Divvy also provides a safety guide to anybody who signs up for an annual membership, but not to daily pass riders.)
Though that waiver may discourage some riders from suing Alta, judges tend to disfavor disclaimers of personal-injury liability. Especially long-form disclaimers like Divvy’s, which runs to nearly two dozen pages. “If I were [Alta’s] attorney, I probably would say you shouldn’t get very comfortable with that -page disclaimer,” Hurt says. “With waivers, we like them to be express. They need to be on separate page, pointed to, in all caps. That’s really hard to do in a kiosk.”
Sun-Times Media photo