BY MATT PRESENT
Source: Chicago Grid
Chicago’s booming bike-share program could be headed toward a lawsuit, attorneys say.
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
R A Goodstein2 hours ago
This reminds me of when a driver in a zip car smashed the front of my car. The zip car had no insurance info in the glove box. And the company NEVER returned my calls about the accident. Fortunately, the driver was an honorable person (tho an inexperienced city driver) and sent me a check for the cost of the repairs immediately (about $2,000.) It would be unlikely that the accident would appear in any statistics about zip cars safety record. Its unlikely that the zip car driver caused collision I experienced was the only one where the car had no insurance info with it and the company never acknowledged my call/claim.
This Divvy business is reckless IMO.
Indeed the Chicago approach to biking is a problem: no requirement that bicyclist take a class and learn the rules of the road, no charging bicyclist for all the “improvements” made for their “safety” at the cost of more traffic congestion.
The alleys (Chicago’s second/parallel system of roads) and one way streets should be used for bikes not the main streets.
Bob Kastigar3 hours ago
In most of the cities in Europe where bicycle transportation is most popular, very few people wear helmets.
Yes, wearing helmets is a good idea but isn’t a requirement and shouldn’t be used as a test of responsibility for a company renting bicycles.
Tim Allen3 hours ago
Winfield Cohen should be ashamed of himself . The man gets on a bike , no helmet , crashes into a car door swung open in his path by another inconsiderate person and he sues the bike rental company? This is so typical today. Another one taking no personal responsibility for his actions. Because no one provided him with a helmet , he rides without one. No one taught him how to ride a bike ? Then why ride one , especially without a helmet. Mr. Cohen , grow up for God’s sake. Take ownership of your own stupidity and carelessness.
If I was running the company that provides the bike service I would be tempted to pull my business from Chicago since they are a people that takes no responsibility of their own actions.
The problem lies within ourselves. We are treating bike lanes and cycling as if they were elements in the User Interface (UI) design of the earliest iPods. With that device you could spend some time trying to get acquainted with its functioning with little regard to your personal safety. In the case of what I like to call Bicycle Infrastructure (BI) we have folks who are either not traffic safety engineers or certainly not ones who ride bicycles trying to design an interface for cyclists without having attempted to try it out themselves.
What we witnessed in the case of this potentially tragic situation with the young lady caught on Lake Shore Drive is what happens when we are as a society clueless about the abilities of one another to navigate bicycles in a busy urban environment with few visual clues for use in the process. Pretty green paint laid down on streets and cordoned off with PVC bollards does not make a true stretch of Bicycle Infrastructure. What it does do it provide something soothing and inviting to newbie users who might otherwise not venture out.
But when they do the situation of this young lady on the LSD is likely to be the outcome. We have only ourselves to blame. Bicycle Infrastructure needs a good deal of education and training just to use wisely. But of all the groups most likely to oppose getting people such training it would be bicyclists themselves. Non-cyclists would be the first to admit that education and training are needed. But cyclists act as if you had tossed scalding water on them and flee the room in horror at the mere suggestion of either.
No need for me to argue the issue, however. One day and perhaps sooner than later another hapless individual will commit the same mistakes and enter the northbound lane of the Lake Shore Drive on a Divvy bike. Only this time it will be from the 35th Street station and they will suddenly find themselves riding up the ramp that leads to the flyover that eventually takes them to the 294 and Kennedy. But that one will end no doubt with serious injury or worse and a terrible needless lawsuit.
I say this because I witnessed a fellow on a Divvy bike who was fortunately stopped by the police because he was about to do just that! Fortunately they caught him and steered him over to the Chicago Lakefront Trail. Simple street signage and/or lane markings and a map might be all that is needed to keep people from getting hurt or worse!