Trial Magazine

Learn about bike share litigation in this overview of potential defenses and key evidence.

Since 2010, bike share usage has increased exponentially.¹ Anyone with a credit or bank card can rent a bicycle from a designated station, ride the bicycle for either recreation or as a transportation alternative, and then return the bicycle to one of many available stations. This leads to riders with a wide array of skill and experience levels on the roadways, and the increase in bike share usage correlates to massive increases in bicycling overall and—unfortunately—injuries.² But before you take a case involving bike shares, here are some basics you should know about who could be liable.

Tort Immunity

Typically, states and local municipalities are protected by some form of immunity statute from premises liability, motor vehicle, and roadway design claims. You should expect the municipality or local government and the affiliated companies that operate and maintain the bike share systems to raise a tort immunity defense.

However, they should not be able to hide behind tort immunity when riders allege these entities failed to provide safe stations and bicycles. You can ­overcome these claims in some jurisdictions if you demonstrate that the bikes or the bike share stations were not operated in a reasonably safe condition for the intended use of bicycling.

Unsafe Conditions

The viability of unsafe conditions claims can be seen in a recent case—one of the few litigated so far on bike share liability. In Corwin v. New York City Bike Share, LLC, a bike share cyclist crashed and sustained a brain injury when he hit an unpainted wheel stop that was not easily visible next to a bike share station. He sued New York City, the bike share system providers, and related contractors in the Southern District of New York.³ The city filed a motion for summary judgment and claimed qualified immunity regarding the placement of the unpainted wheel stop. The court denied the motion, holding that there was a genuine dispute of material fact as to whether the city evaluated whether the unpainted wheel stop was unreasonably dangerous to cyclists and pedestrians.⁴ The case settled on the eve of trial.⁵

The evidence gleaned from the public record was critical in defeating the city’s motion for qualified immunity. Since bike share programs are newer programs, the information available via Freedom of Information Act requests or subpoenas may be readily produced in digital format. This information can also help identify additional potential defendants in your case.

Always remember that when considering a claim based on unsafe conditions, what may be safe for vehicles propelled by engines may not be safe for a human-powered bicycle. For example, potholes that might not affect a car can be catastrophic for a bicyclist. Maps detailing stations’ locations and defining or even recommending bicycle routes are easily discoverable online. The fact that a bike share station exists nearby may be evidence that the municipality intended bicycle riding in that area.

And just because a street is on a bicycle map does not mean that a bicycle may be legally ridden there. There may be signs on the roads that prohibit bicycles on all or a specific part of a street. If the injured party was riding on a street where bicycling of any kind is not allowed, that could create a liability issue, and it is best to find that out early on.

Other Key Issues:

If the injury involves a docking station or bicycle failure, also evaluate the possibility of a products liability claim.
Consider whether nondelegable duties to maintain safe roads might factor into your case. For more on this topic, see Michael S. Keating, Bicycling in an Automobile’s World, Trial 28 (Feb. 2016).

Additional Resources:

1. AAJ offers a Bicycle Crashes Litigation Packet (www.justice.org/litigationpackets) with more general biking litigation resources.
2. Check online resources for the bike share program in the municipality at issue.
3. See League of American Bicyclists, State Bike Laws (August 2012), https://bikeleague.org/statebikelaws.

Looking Forward

As bike share usage increases, the time may come when bike shares are looked at as common carriers—another facet in a larger public transportation network. For example, under §314A of The Restatement (Second) of Torts, a common carrier has the duty to protect passengers against “unreasonable risk of physical harm” and give them “first aid” after it knows or has reason to know they are injured.⁶ The common carrier is not just the operator of the vehicle but also includes the entity operating the transit system.

Even though bicyclists are the operators, they are simultaneously the passengers. So if a bike share rider’s release indicates that the program is not a common carrier, that does not mean you can’t fight the language of the release in motion practice or bring general negligence claims. Carefully evaluate any waiver or release that might be involved.

Bike share programs are relatively new, and more litigation is likely as the number of riders increases. As advocates, we can help ensure that our clients’ legal protections keep up.

Michael S. Keating is the founder of Keating Law Offices in Chicago. He can be reached at mike@keatinglegal.com.

Notes

1. Nat’l Ass’n of City Transp. Officials, Bike Share in the US: 2010–2016 (2017), https://nacto.org/bike-share-statistics-2016/.
2. Thomas Sanford et al., Bicycle Trauma Injuries and Hospital Admissions in the United States, 1998–2013, JAMA (Sept. 1, 2015), https://jamanetwork.com/journals/jama/fullarticle/2432153.
3. The bike provider was Alta Bicycle Share, Inc., now known as Motivate International, Inc. (www.motivateco.com). It operates bike share programs across the United States including Citi Bike in New York City, Ford GoBike in the San Francisco Bay region, and Divvy in Chicago.  
4. Corwin v. NYC Bike Share, LLC, 238 F. Supp. 3d 475, 504 (S.D.N.Y. Mar. 1, 2017).
5. Corwin v. NYC Bike Share, LLC, No. 14-CV-1285-SN (S.D.N.Y. June 27, 2017).
6. Restatement (Second) of Torts §314A (1965).