You Play, You Pay

TRUE STORY. IT'S A CHILLY DAY ON MT. TAMALPAIS, BACK IN JANUARY OF 1993. BUT 23-YEAR-OLD Mark Fiorito doesn't mind. He's out on his trusty Mongoose IBOC Comp, and riding is what he likes to do. He's flowing down the mountain. He's not at work. And then suddenly, everything is wrong. Somehow, Fiorito's front wheel comes off his bike and he goes down. Hard. So hard that Fiorito will suffer from severe head injuries for years after the accident.

Before the crash, Fiorito was the quintessential über-athlete. A champion swimmer ranked 25th in the world in the 100-meter butterfly. Since the crash, he's been wracked by seizures that come and go. It's pretty clear: Fiorito won't be setting any more records any time soon.

It's a horrible story - a story that every mountain biker hopes he'll never play the lead role in. Could there be anything worse than having your health pounded out of you in the prime of your life?

Actually, yes. Things could get worse...for everyone else involved.

Fiorito retained attorneys who then lodged lawsuits against all parties involved with the accident: Mongoose; Ken's Bike & Sports, which sold the bike; and Spinner and Merida, the Taiwanese manufacturers that built the frame and fork.

Fiorito's attorneys argued that quick releases routinely vibrate loose, and as a result mountain bikers routinely lose their front wheels. They claimed that forks require permanent retention devices - such as forged tabs - to keep front wheels attached. Fiorito's Mongoose didn't have them. Instead, it originally came equipped with removable peg washers that served the same purpose. Those washers, however, had been thrown away long before the crash. Fiorito, they argued, had been riding a ticking time bomb and someone had to pay.

Three years after his accident, Fiorito's attorneys sat in a courtroom a few miles from Mt. Tamalpais and gathered $3.4 million from the Taiwanese frame and fork manufacturers. The lawyers had already wrung money, via an out-of-court settlement, from Mongoose and from Ken's Bike & Sports, which soon thereafter closed its doors for good, due in part to the negative publicity surrounding the court case.

Welcome to America, home of the free - and the free to sue. It's ironic. America, a country founded on principles of selfreliance and personal responsibility, is one of the most lawsuitprone nations on earth. Old news, right? Sure. What you may be unaware of, however, is the impact that liability lawsuits have had on mountain biking. But rest assured, lawsuits are affecting our sport, shaping how much you'll pay for your next bike and whether or not mountain bikers will have new trails to ride.

the good

First, the good news: The number of product liability cases in America - from hot coffee burns to broken baby carriages - is actually on the decline. Why, then, do we hear so much about big-dollar lawsuits involving products? According to California attorney Steven W. Hansen, outrageous liability lawsuits get all the press because, well, they're good for the press. "Journalists like to report about these cases. Coffee spills and flipping Ford Explorers - it's cheap, easy and riveting news. There's a problem there, of course, in that it gives people a very skewed view of what's happening overall...but it sure makes for titillating headlines."

Hansen knows the bike industry. An avid rider himself, he's also defended numerous bike-related companies in liability claims. Hansen contends that while it's hard to determine the exact number of bicycle-related lawsuits out there, these cases also seem to be on the decline. Why? "I do not think the decline in claims is due to any one factor. One theory is that there is simply a lot more concern about product safety. I think companies realize that by making a very good and safe product, you can have lower insurance premiums, less recalls and happier customers."

Marc Sani, publisher of Bicycle Retailer and Industry News, makes it the magazine's business to follow lawsuits in the bike industry. If Sani sees an upside to the legal wrangling, it's that the threat of a lawsuit is one of many factors bike companies keep in mind when introducing new products. "The legal system offers consumers an expensive - and public - remedy if a company fails to meet acceptable standards. That's one of the reasons most cycling equipment on the market operates as well and reliably as it does."

Fewer lawsuits...better, safer products...sounds hunkydory. Unfortunately, the picture isn't quite so rosy. Even companies who produce the safest bikes are dragged into costly lawsuits, and those expenses eventually trickle down to the average mountain biker. Hansen puts it this way: "No matter how good your product is, if you have millions of bikes out there, sooner or later something is going to happen to one of them. It's just a question of numbers and time. A lot of companies get involved in these cases because of various silly types of things. People saying that their pedals were too tight and they crashed, or the bike didn't shift right so they crashed, the saddle wasn't designed right so they became impotent... It's not as if the bike broke. Most of the time it's due to a lack of maintenance or rider error."

the bad

There are three basic ways that bike companies can be sued for liability. One, their bike is manufactured defectively, breaks and causes an accident. Two, their bike is designed defectively and the design flaw leads to some kind of incident. Three, their bike didn't feature sufficient warnings - nothing is wrong with the bike, but the company failed to warn the bike's owner of some potential danger. While plaintiffs' lawyers often tap into all three theories in any given case, the insufficient-warning style of lawsuit is becoming increasingly popular.

David Campbell, Cannondale Bicycles' director of technical services, describes it like this: "The attorneys who work for plaintiffs in these personal injury cases are looking for clever ways to make money. So, let's say the bike is manufactured correctly and designed appropriately, but you didn't tell the rider that he can't do certain things on it, like, say, jump off cliffs. The bike didn't come with specific enough warnings. That's a great theory for lawyers because they are not engineers or designers, but they are very familiar with wordplay. So you can take a perfect product that is functionally A-OK, and you can come up with some cockamamy way of using it, get hurt and then you can say, 'Well, you didn't warn me that I shouldn't use it that way.' It's the grand catchall that allows you to take any case to court. The Derby case is the perfect example of this."

Ah, Johnson vs. Derby Cycles... It's hard to talk about lawsuits without bringing this one up. Here's the abridged version: Johnson, a New Jersey high school student, was riding his bike home from work one night when he was struck by a car. The driver never saw him. The injuries were severe. Johnson wasn't using a lighting system, relying instead on his bike's reflectors. Every state requires that cyclists use headlights while riding at night. Johnson was violating state law. Nevertheless, he sued Derby Cycles (the manufacturer of his bike) because they did not print this fact in their owner's manual. A case of insufficient warning.

While the Derby owner's manual stated that riders should use lights while riding off-road at night, it didn't state that riders should use lights while riding on the road at night. By not issuing such a specific warning, Johnson's lawyer argued, Derby gave his client the false impression that his bicycle's reflectors were adequate protection. The attorney defending the bike company argued that it was Johnson's responsibility to use a light. It was the rider's responsibility to know and obey state law. The jury disagreed: Derby had led Johnson astray. Derby had to pay. Two million dollars, to be exact.

Johnson vs. Derby Cycles was a landmark case. It proved that when jurors sit down and ask the question, "Who's responsible when bad things happen to cyclists?" the finger of blame often points to bike companies. The Derby verdict proved that manufacturers can be held responsible for much more than making a safe product.

the ugly

How do these lawsuits affect the average cyclist? For starters, they lead to higher prices for bikes and gear. The vast majority of liability lawsuits end in settlements - that is, they never make it to court. Even in cases where the bike company has a good chance of winning, they often settle. The thousands of dollars involved with waging war in court are just too costly. It's easier to settle, pay the plaintiff and have him disappear behind a non-disclosure statement. At the end of the year, however, those settlements and annual insurance premiums are added to the company's operating budget - right there next to employee salaries, equipment costs and advertising. That cost is then reflected in next year's price tags. How much extra are you paying for your next bike or helmet because of lawsuits? It's hard to say, but the money is definitely coming out of your pocket.

A few extra dollars pales, however, when compared to the impact liability lawsuits have on trail access. If a clever plaintiff's lawyer can squeeze a few dollars from a bike company, why stop there? What about the trail itself? Maybe it contributed to the accident. Shouldn't the landowner pull out his wallet and make the victim feel better?

A version of this story is unfolding right now. On July 8, 2000, Robert Palestine was riding in Lewis Morris Park in New Jersey when he hit "an uneven portion of the trail," fell and broke his leg. Palestine recently filed a suit against the agency governing the county park, contending that his injuries necessitated surgery and deprived his wife of "services, companionship, comfort, consortium and marital relations."

Local authorities are distressed. Douglas Cabana, freeholder director of Morris County, summed it up in a recent article that appeared in the local Daily Record. "There are hazards everywhere. People have to take responsibility for their actions. If you trip on the sidewalk, are you going to sue someone because you're a klutz?" Quentin Schlieder, secretary director of the Morris County Park Commission, makes an even finer point. "In general, the more liability cases that the county experiences, the more reluctant the county will be to get involved with mountain biking. Unfortunately, every time something like this happens, there is consideration given to either restricting mountain biking or closing the parks altogether to this kind of activity."

"Liability lawsuits are a continuing threat to access." This comes straight from the mouth of IMBA Executive Director Tim Blumenthal. Blumenthal says lawsuits aren't necessarily causing existing trails to be closed, but they are keeping riders off new trails. "We get calls from mountain bikers at least once or twice a week whose local land managers are citing lawsuits as a reason to keep riders off new trails. It's fairly common. What I would say is that land managers are often grasping, looking for anything they can to justify a decision to not open trails to bicyclists."

Fortunately, nearly every state has a law on the books protecting private landowners and public land managers from liability lawsuits. These laws, known generically as Recreational Use Statutes, exempt landowners from being held liable for accidents on their property except in cases of gross negligence. To be found "grossly negligent," a landowner has to do something obviously unreasonable, such as leaving a case of dynamite on the trail. The IMBA Web site (www.imba.com) contains up-todate listings of state statutes, which IMBA hopes will help mountain bikers educate landowners. Notes Blumenthal, "A lot more education needs to be done on this. I'd say that 70 to 80 percent of land managers don't realize that they are protected. "

Unfortunately, while Recreational Use Statutes ultimately protect landowners from being found liable, liability lawsuits still pose legal headaches and costs that property owners want nothing to do with. Back in Morris County, New Jersey, Quentin Schlieder is still an unhappy man. "Yes, there are Recreational Use Statutes, but while you may not have to pay a claim, just the cost of protecting yourself...going to court and hiring experts - that becomes a cost that has to be considered in future decisions."

In short, we're not out of the legal jungle just yet. Blumenthal sums it up well: "Every time I see lawsuit commercials on TV, the ambulance chasers asking whether you've hurt your back recently or if you've been in a car wreck, I shudder because I figure that some of those guys are hooking up with cyclists. Let's face it, lawsuits are a big part of our society, and if it hurts mountain biking, it's really a sad day. When you make a boneheaded move and then try to make it someone else's responsibility, that's bad for mountain biking. Fundamentally bad."

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	You Play, You Pay By Vernon Felton, BIKE magazine. TRUE STORY. IT'S A CHILLY DAY ON MT. TAMALPAIS, BACK IN JANUARY OF 1993. BUT 23-YEAR-OLD Mark Fiorito doesn't mind. He's out on his trusty Mongoose IBOC Comp, and riding is what he likes to do. He's flowing down the mountain. He's not at work. And then suddenly, everything is wrong. Somehow, Fiorito's front wheel comes off his bike and he goes down. Hard. So hard that Fiorito will suffer from severe head injuries for years after the accident. Before the crash, Fiorito was the quintessential über-athlete. A champion swimmer ranked 25th in the world in the 100-meter butterfly. Since the crash, he's been wracked by seizures that come and go. It's pretty clear: Fiorito won't be setting any more records any time soon. It's a horrible story - a story that every mountain biker hopes he'll never play the lead role in. Could there be anything worse than having your health pounded out of you in the prime of your life? Actually, yes. Things could get worse...for everyone else involved. Fiorito retained attorneys who then lodged lawsuits against all parties involved with the accident: Mongoose; Ken's Bike & Sports, which sold the bike; and Spinner and Merida, the Taiwanese manufacturers that built the frame and fork. Fiorito's attorneys argued that quick releases routinely vibrate loose, and as a result mountain bikers routinely lose their front wheels. They claimed that forks require permanent retention devices - such as forged tabs - to keep front wheels attached. Fiorito's Mongoose didn't have them. Instead, it originally came equipped with removable peg washers that served the same purpose. Those washers, however, had been thrown away long before the crash. Fiorito, they argued, had been riding a ticking time bomb and someone had to pay. Three years after his accident, Fiorito's attorneys sat in a courtroom a few miles from Mt. Tamalpais and gathered $3.4 million from the Taiwanese frame and fork manufacturers. The lawyers had already wrung money, via an out-of-court settlement, from Mongoose and from Ken's Bike & Sports, which soon thereafter closed its doors for good, due in part to the negative publicity surrounding the court case. Welcome to America, home of the free - and the free to sue. It's ironic. America, a country founded on principles of selfreliance and personal responsibility, is one of the most lawsuitprone nations on earth. Old news, right? Sure. What you may be unaware of, however, is the impact that liability lawsuits have had on mountain biking. But rest assured, lawsuits are affecting our sport, shaping how much you'll pay for your next bike and whether or not mountain bikers will have new trails to ride. the good First, the good news: The number of product liability cases in America - from hot coffee burns to broken baby carriages - is actually on the decline. Why, then, do we hear so much about big-dollar lawsuits involving products? According to California attorney Steven W. Hansen, outrageous liability lawsuits get all the press because, well, they're good for the press. "Journalists like to report about these cases. Coffee spills and flipping Ford Explorers - it's cheap, easy and riveting news. There's a problem there, of course, in that it gives people a very skewed view of what's happening overall...but it sure makes for titillating headlines." Hansen knows the bike industry. An avid rider himself, he's also defended numerous bike-related companies in liability claims. Hansen contends that while it's hard to determine the exact number of bicycle-related lawsuits out there, these cases also seem to be on the decline. Why? "I do not think the decline in claims is due to any one factor. One theory is that there is simply a lot more concern about product safety. I think companies realize that by making a very good and safe product, you can have lower insurance premiums, less recalls and happier customers." Marc Sani, publisher of Bicycle Retailer and Industry News, makes it the magazine's business to follow lawsuits in the bike industry. If Sani sees an upside to the legal wrangling, it's that the threat of a lawsuit is one of many factors bike companies keep in mind when introducing new products. "The legal system offers consumers an expensive - and public - remedy if a company fails to meet acceptable standards. That's one of the reasons most cycling equipment on the market operates as well and reliably as it does." Fewer lawsuits...better, safer products...sounds hunkydory. Unfortunately, the picture isn't quite so rosy. Even companies who produce the safest bikes are dragged into costly lawsuits, and those expenses eventually trickle down to the average mountain biker. Hansen puts it this way: "No matter how good your product is, if you have millions of bikes out there, sooner or later something is going to happen to one of them. It's just a question of numbers and time. A lot of companies get involved in these cases because of various silly types of things. People saying that their pedals were too tight and they crashed, or the bike didn't shift right so they crashed, the saddle wasn't designed right so they became impotent... It's not as if the bike broke. Most of the time it's due to a lack of maintenance or rider error." the bad There are three basic ways that bike companies can be sued for liability. One, their bike is manufactured defectively, breaks and causes an accident. Two, their bike is designed defectively and the design flaw leads to some kind of incident. Three, their bike didn't feature sufficient warnings - nothing is wrong with the bike, but the company failed to warn the bike's owner of some potential danger. While plaintiffs' lawyers often tap into all three theories in any given case, the insufficient-warning style of lawsuit is becoming increasingly popular. David Campbell, Cannondale Bicycles' director of technical services, describes it like this: "The attorneys who work for plaintiffs in these personal injury cases are looking for clever ways to make money. So, let's say the bike is manufactured correctly and designed appropriately, but you didn't tell the rider that he can't do certain things on it, like, say, jump off cliffs. The bike didn't come with specific enough warnings. That's a great theory for lawyers because they are not engineers or designers, but they are very familiar with wordplay. So you can take a perfect product that is functionally A-OK, and you can come up with some cockamamy way of using it, get hurt and then you can say, 'Well, you didn't warn me that I shouldn't use it that way.' It's the grand catchall that allows you to take any case to court. The Derby case is the perfect example of this." Ah, Johnson vs. Derby Cycles... It's hard to talk about lawsuits without bringing this one up. Here's the abridged version: Johnson, a New Jersey high school student, was riding his bike home from work one night when he was struck by a car. The driver never saw him. The injuries were severe. Johnson wasn't using a lighting system, relying instead on his bike's reflectors. Every state requires that cyclists use headlights while riding at night. Johnson was violating state law. Nevertheless, he sued Derby Cycles (the manufacturer of his bike) because they did not print this fact in their owner's manual. A case of insufficient warning. While the Derby owner's manual stated that riders should use lights while riding off-road at night, it didn't state that riders should use lights while riding on the road at night. By not issuing such a specific warning, Johnson's lawyer argued, Derby gave his client the false impression that his bicycle's reflectors were adequate protection. The attorney defending the bike company argued that it was Johnson's responsibility to use a light. It was the rider's responsibility to know and obey state law. The jury disagreed: Derby had led Johnson astray. Derby had to pay. Two million dollars, to be exact. Johnson vs. Derby Cycles was a landmark case. It proved that when jurors sit down and ask the question, "Who's responsible when bad things happen to cyclists?" the finger of blame often points to bike companies. The Derby verdict proved that manufacturers can be held responsible for much more than making a safe product. the ugly How do these lawsuits affect the average cyclist? For starters, they lead to higher prices for bikes and gear. The vast majority of liability lawsuits end in settlements - that is, they never make it to court. Even in cases where the bike company has a good chance of winning, they often settle. The thousands of dollars involved with waging war in court are just too costly. It's easier to settle, pay the plaintiff and have him disappear behind a non-disclosure statement. At the end of the year, however, those settlements and annual insurance premiums are added to the company's operating budget - right there next to employee salaries, equipment costs and advertising. That cost is then reflected in next year's price tags. How much extra are you paying for your next bike or helmet because of lawsuits? It's hard to say, but the money is definitely coming out of your pocket. A few extra dollars pales, however, when compared to the impact liability lawsuits have on trail access. If a clever plaintiff's lawyer can squeeze a few dollars from a bike company, why stop there? What about the trail itself? Maybe it contributed to the accident. Shouldn't the landowner pull out his wallet and make the victim feel better? A version of this story is unfolding right now. On July 8, 2000, Robert Palestine was riding in Lewis Morris Park in New Jersey when he hit "an uneven portion of the trail," fell and broke his leg. Palestine recently filed a suit against the agency governing the county park, contending that his injuries necessitated surgery and deprived his wife of "services, companionship, comfort, consortium and marital relations." Local authorities are distressed. Douglas Cabana, freeholder director of Morris County, summed it up in a recent article that appeared in the local Daily Record. "There are hazards everywhere. People have to take responsibility for their actions. If you trip on the sidewalk, are you going to sue someone because you're a klutz?" Quentin Schlieder, secretary director of the Morris County Park Commission, makes an even finer point. "In general, the more liability cases that the county experiences, the more reluctant the county will be to get involved with mountain biking. Unfortunately, every time something like this happens, there is consideration given to either restricting mountain biking or closing the parks altogether to this kind of activity." "Liability lawsuits are a continuing threat to access." This comes straight from the mouth of IMBA Executive Director Tim Blumenthal. Blumenthal says lawsuits aren't necessarily causing existing trails to be closed, but they are keeping riders off new trails. "We get calls from mountain bikers at least once or twice a week whose local land managers are citing lawsuits as a reason to keep riders off new trails. It's fairly common. What I would say is that land managers are often grasping, looking for anything they can to justify a decision to not open trails to bicyclists." Fortunately, nearly every state has a law on the books protecting private landowners and public land managers from liability lawsuits. These laws, known generically as Recreational Use Statutes, exempt landowners from being held liable for accidents on their property except in cases of gross negligence. To be found "grossly negligent," a landowner has to do something obviously unreasonable, such as leaving a case of dynamite on the trail. The IMBA Web site (www.imba.com) contains up-todate listings of state statutes, which IMBA hopes will help mountain bikers educate landowners. Notes Blumenthal, "A lot more education needs to be done on this. I'd say that 70 to 80 percent of land managers don't realize that they are protected. " Unfortunately, while Recreational Use Statutes ultimately protect landowners from being found liable, liability lawsuits still pose legal headaches and costs that property owners want nothing to do with. Back in Morris County, New Jersey, Quentin Schlieder is still an unhappy man. "Yes, there are Recreational Use Statutes, but while you may not have to pay a claim, just the cost of protecting yourself...going to court and hiring experts - that becomes a cost that has to be considered in future decisions." In short, we're not out of the legal jungle just yet. Blumenthal sums it up well: "Every time I see lawsuit commercials on TV, the ambulance chasers asking whether you've hurt your back recently or if you've been in a car wreck, I shudder because I figure that some of those guys are hooking up with cyclists. Let's face it, lawsuits are a big part of our society, and if it hurts mountain biking, it's really a sad day. When you make a boneheaded move and then try to make it someone else's responsibility, that's bad for mountain biking. Fundamentally bad."


Help \| Site Map \| Copyright