On Your Mark, Get Set, Waiver! When Bicyclists Sign Their Rights Away.

As an attorney who represents injured bicyclists, and who also sponsors cycling clubs, race teams and bike events I love and hate exculpatory agreements.  These rights waiving documents can be devastatingly bad for the individual cyclist who has been harmed due to someone else's negligence. On the other hand, such waivers protect cycling groups who invest time, money and resources in putting together events that bicyclists enjoy.

Generally, an exculpatory agreement is a document in which one party agrees to waive his or her right to seek compensation or sue for injuries caused by the other party's negligence.  Sometimes these agreements are referred to as waivers.  Most bicycle race and event organizers require participants to sign such an agreement before hand.  Virtually all 50 states have their own set of laws regarding whether and when exculpatory agreements may act as a bar to liability.  Here in Illinois our appellate court had the opportunity in 2011 to consider the binding effect of a waiver used widely by USA Cycling, the national governing body for bike racing in the United States.  

In Hellweg v. Special Events Management, a cyclist, Brian Hellweg, was injured during a bike race organized by the defendants.  The race was to be on a "closed course" held on municipal streets.  Mr. Hellweg was injured when he crashed into a nonparticipating cyclist who had wandered onto the course during a warm-up session.  He filed a lawsuit against the race organizers alleging they failed to close the course as they had promised.  The defendants sought dismissal of the case citing a USA Cycling Event Release Form which Mr. Hellweg had signed.  The appellate court upheld dismissal of the case.  The Court was unpersuaded by the plaintiff's argument that the manner in which the crash occurred was not reasonably foreseeable. Though the Court agreed that "foreseeability of a specific danger is" an important factor to consider when assessing the scope of an exculpatory clause, it held that it was not necessary to spell out every conceivable danger for the agreement to be upheld.  The Court looked at the language of the agreement which read in pertinent part:

I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT, whether as a rider, official, coach, mechanic, volunteer, or otherwise, and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation:  dangers of collision with pedestrians, vehicles, other riders, and fixed or moving objects; THE RELEASEES' OWN NEGLIGENCE, the negligence of others; and the possibility of serious physical and/or mental trauma or injury or death associated with the event, I HEREBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIFY AND NOT TO SUE the Releasees and all sponsors, organizers, promoting organizations, property owners, law enforcement agencies, public entities, special districts and properties that are in any manner connected with this event, and their respective agents, officials, and employees through or by which the event will be held, (the foregoing are also collectively deemed to be Releasees), FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES' OWN NEGLIGENCE... (Emphasis in original)

Id.

The Court felt that the presence of nonparticipants in bicycle races was an inherent and reasonably foreseeable risk.  It also concluded that in any event the language of the agreement clearly contemplated the possibility "of collision with pedestrians, vehicles, other riders, and fixed or moving objects."

While Hellweg was a clear victory for race and bike event organizers it is important to point out that it does not stand for the proposition that exculpatory agreements will bar liability in all circumstances.  They don't.  Waivers do not bar liability for willful and wanton conduct; that is conduct in which one shows a reckless disregard for the safety of others.  For example, an organizer who threw ball bearings onto the course during a race would not be protected where his conduct caused injury to a rider.  Use of fraud to induce one to sign an exculpatory agreement would also void its protection.  The bottom line, however, is that before participating in a race or other bike event requiring a waiver of your rights, understand what you are getting into.  If you are injured have an experienced attorney review the waiver language and consider the circumstances of the crash to determine the likelihood that your rights have indeed been waived.

The Tale of the Alleycat

Traditionally, alleycat bicycle racing was meant to replicate what bike messengers do on a daily basis: Quickly and efficiently ride through crowded urban landscapes to deliver parcels. In its purest form, during an alleycat riders are informed of a number of checkpoints they must reach. At each, they receive instructions regarding what to do next, then it's forward to the next stop. Knowledge of city streets and back alleys, as well as strength on a bike are key components for success. The first racer to travel to all checkpoints and cross the finish wins. The spoils are modest: a smallish amount of cash, a new bicycle or component. The real prize, however, comes from knowing (and letting it be known) that you are the best at what you do. Collecting wins is better than employee of the month plaques, yet not as obnoxiously self-aggrandizing as collecting yachts and sports cars.

(Click here for a fun read about a Chicago bike messenger's race experience in Philadelphia. Rated PG-13.)

Here's the thing though: Alleycat races are dangerous and illegal. Under Illinois law bike races must be approved by state or local authorities before they may take place on public streets. Generally, approval will not be granted unless accommodations are made so that the event does not interfere with traffic. 625 ILCS 5/11-1514. The point of alleycat racing is to test one's ability to travel by bike in the city under the kinds of conditions faced daily by bike messengers, in traffic. Obviously, no governmental authority would sanction a race in moving traffic. One significant downside to these races operating outside the law is that they are uninsurable. If a racer is hurt due to a poorly designed or designated course, or some other negligent act or omission by the race organizer, he or she will likely be out of luck with regard to receiving compensation.

Bad things can and do sometimes happen in alleycat racing. In March, 2008 a racer was killed during what used to be the biggest and most important such race in the city, the Tour Da Chicago. During the race, several racers ahead of the main pack approached the six-way intersection of Lincoln-Damen-and Irving Park. As they did, the pace, which had been high, slowed because the light was red. However, one of the racers, Matt Lynch, apparently tried to take advantage of everyone else slowing and shot into the intersection. When he did he was struck and killed by an SUV traveling at full speed. Matt made a mistake and it cost him his life. When deciding whether to enter an alleycat race, the prospective participate should consider the stakes and carefully take stock of his or her ability and experience. Recently, there has been a trend of alleycat races being organized and participated in by bicyclists who are not messengers, riders who may not have the kind of ability and smarts that someone who rides for hours every day on crowded city streets does. Several weeks ago I asked Ben Fietz of the Chicago Couriers Union to offer his insight about alleycat races. He graciously did so. Here is what he wrote to me:

Alleycat races are pretty much always illegal, and can be very dangerous. That said, they can also be a very important part of the messenger community and the biking community in general. It sounds crazy, but I probably wouldn't be where I am today if I hadn't participated in alleycat races. In their purest form, alleycat races are a way for messengers to compete against each other and find out who is actually the fastest and who knows the city the best. I have the top spot at one of the best messenger companies in Chicago, and the truth of it is that I got into the company that I work for by racing in alley cats and proving myself about four years ago.

That used to be the main purpose of alleycats. They were races put on by messengers for messengers. But a few years ago, alleycats started to get really popular with city cyclists, and they started entering alleycats, and eventually throwing their own. It got to the point in Chicago where there were more non-messenger thrown races than messenger ones. Of course companies with hip marketing departments became aware of this scene, and sponsorship for the races grew. The early alleycat races usually didn't have any sponsors at all, they would just be a cash race, winner takes all. It has gotten to the point where people are having alleycat races in cities which don't even have any messengers in them. I heard about a race in St. Augustine Florida, which seems kind of silly. A couple of years ago, Velocity wheels sponsored and threw an alleycat in the city in Michigan which their headquarters are located. Once again, there were no messengers in the city, but they had an alleycat with a huge prize list, and people came from all over to race.

There aren't as many alleycat races in Chicago as there used to be. The Sadie Hawkins race in the fall is a yearly race, which has very little involvement by messengers, but it's a fun race and usually has a huge turnout. A messenger has been throwing a race about once a month downtown. These races are short and fast, and are set up to favor messengers. There are usually a couple of stops in each race that are very hard to find unless you are a messenger. The biggest race used to be the Tour Da Chicago, until Matt's death.

* * * * *

As far as the safety of alleycats, it is pretty much up to the individual racer to race within your limits. There isn't really any way to make a completely safe alleycat race. The whole point is that you are racing on city streets with traffic. The difference between a good alleycat race and a bad one is the level of organization and how well the race flows. But how well the race is organized really doesn't have any bearing on how safe that race will be to enter, just how much fun it will be.

Alleycat racing, if it is to be done at all, should be left to folks who know what they are doing. A group of riders racing through city streets pretending to be something they are not, professional bicycle couriers, is a recipe for disaster. Before deciding to participate in an alleycat understand what you are getting into.

Representing The Competitive Cyclist In Personal Injury Litigation

Competitive cyclists are a hardy bunch. Years ago I did a bit of mountain bike racing. It was very amateur stuff and I generally got my butt kicked, but even at that level there was definitely a hard-ass, nothing-will-slow-me-down attitude among the competitors. Like any other athlete, bicycle racers get hurt. They crash, lose skin, break bones. But following an injury many of these folks will want to just rub some dirt on it then get right back on their bikes. I admire that attitude, but it can get in the way of a personal injury claim. Say, for example, you are out training before a big race, get hit by a car and suffer a shoulder separation and ankle fracture. You hire an attorney who brings a claim against the driver. Grimacing with each pedal stroke you participate in and finish the big race, though you don't do as well as in previous contests. When your attorney begins negotiating resolution of the case, the motorist's attorney (hired by the insurance company) pushes back against your demand for a significant settlement by pointing out that you raced soon after your accident; your injury must not be too bad.

Wait, what? thinks the bicyclist's attorney. How the heck did he know about the race? Many insurance companies will look up a competitive athlete's race history online to learn if they've raced soon after sustaining a injury. The defense will use this information to suggest that the injury wasn't very serious after all. In front of a jury of coach potatoes, you can imagine the type of impact this information may have.

The attorney of an injured competitive cyclist must take into account that the defense will learn his or her client's race history when devising a case strategy. The client must me made to understand that racing after an accident may negatively impact the case. Perhaps it should be avoided. If the race is just too important then care must be taken early in litigation to gather evidence to help a jury understand the competitor's mindset and to appreciate how a serious athlete endures pain. If the cyclist had to be taped, casted or otherwise specialty outfitted in order to race, take some photographs depicting this. Catalog race statistics and results from before the accident and be prepared to compare those to race results afterward. Was performance compromised by the injury? The bottom line is that the attorney must be ready to teach a jury (or a claims adjuster) about the athletes' mindset. An athlete endures pain, but suffers nonetheless.