Advocacy & Safety - Bicycle clubs and lawsuits

We have just started a new bicycle club in our town. We have joined LAB and have the club insurance that they provide for 2004.

We have a membership application that includes a generic indemnity waiver. Our club rides are open to members and any guests will be required to sign the waiver. The basic stuff LAB suggests. The waiver also includes the requirements for our group rides:


All cyclists must wear an ANSI approved helmet while riding.
While on the road, ride no more than two abreast (Alabama law) and ride single file on streets with large traffic volume.
It is the responsibility of each rider to ensure that they are physically able to participate. See your doctor before you ride if there is any doubt.
If there is a bike path use it (Alabama law) unless it's unsafe to do so.
If you are uncomfortable riding in a paceline please tell your ride leader. We will be happy to help you learn this skill.
Know your limits and stay within them on the trail or street. If you are not comfortable with the pace of the ride, slow down. Unless otherwise stated, our rides have a "no drop" policy and we will wait on you.
When on the road, please assist other club members by calling "car back", "heads up", etc... to alert them to possible safety concerns. Also, it is always appreciated when road debris, trail debris or potholes are pointed out to others.


If there is anything that you feel I should change or add to this list please let me know.

I've searched this great forum for ideas and learned that in litigation we may need to prove that we chose the "safest" route for our ride. This sounds doable, within reason.

Special events will be a whole 'nother animal, I guess, and we'll do the LAB waiver and obtain the insurance for each participant.

I'm sure there's more that we could do to help protect ourselves from litigation in the event of an accident during one of our regular club rides or special events and welcome any suggestions.

Thanks.

Scott

PS: I don't want to take the fun out of our rides, but as an officer in the club I don't want to lose my home over a lawsuit either.

How about:

8. Riders ride at their own risk, and {insert name of your club here** accepts no responsibility for any injury suffered by participants on {insert club name again** rides.


Yes, it sounds harsh, but the litigation crazy world we live in makes it kind of necessary.

It is likely that your waiver will do little good if there is actual negligence on the part of the club. A person can't sign away their rights in certain situations.

A person must fully understand the dangers before he can waive liability about those dangers, something a neophyte biker, for example, wouldn't have a clue about, no matter how many paragraphs you wrote.

I.e., how would a beginning rider (or for that matter, any rider) evaluate


If there is a bike path use it (Alabama law) unless it's unsafe to do so.

as to whether a bike path is safe or unsafe?

Having a waiver in no way prevents a suit. It may help you win the suit, but the suit itself may be primarily about the validity of the waiver. Defending a lawsuit is a losing proposition even if you win.


PS: I don't want to take the fun out of our rides, but as an officer in the club I don't want to lose my home over a lawsuit either.

You need to talk with someone about officially incorporating (or whatever other insulation your state laws provide) your club to provide a layer of protection between the officer's personal assets and the assets and insurance of the bicycle club.

However, it is still a good idea to have the waiver.

It is likely that your waiver will do little good if there is actual negligence on the part of the club. A person can't sign away their rights in certain situations.

Sad but true. There was an in-depth discussion on a similar case, in the online VeloNews, by Bob Mionske, a former olympic cyclist, now a lawyer specializing in cyclist issues. He said, in essence, the law frowns on documents in which people sign away their legal rights. So if someone wants to fight a case, a release isn't worth much more than the paper it is written on. Compounding that, if someone is hurt in one of your club events, the suit will probably originate with the dork's insurance company, by their lawyers who do it for a living every day of the year. What bike club has money to fight that?

My advice? I dunno. A bike club isn't going to have much that can be sued, it becomes more of an issue of risk for any sponsors you might have, or organizations you might be trying to raise money for (as in a charity ride).

You might try rummaging through the VeloNews archives to see if Bob Mionske has submitted an article dealing with protecting the club, or you could shoot him an email (www.bicyclelaw.com). Seems like a common enough question that there should be a stock answer. Worst that could happen is that he either asks for money, or blows you off.

For what it's worth, here's the slightly modified (it's not really East Dorksville) release that the club I belong to requires you to read and sign:

Release: In signing this application, I hereby make it know, to whomever it may concern, that during East Dorksville Racing Club, Inc. Bicycling activities-with full realization that there are known and unknown hazards incident to these activities- I do hereby assume all risks for injury, loss or damage, foreseeable or not, which I and/or any children under the age of 18 in my care, may sustain as an incident to such activities, I warrant to make no claim at low or equity against East Dorksville Racing Club, Inc., or any participant arising out of any injury, loss or damage from whatever cause during a East Dorksville Racing Club, Inc. Bicycling activity PROVIDED HOWEVER, this release shall not be construed to limit my right to proceed against any class of persons specifically excluded herein, who negligently cause injury, loss or damage to the persons named on this application.

It's a depressing situation, but people are still forming clubs and doing rides. Good luck!

What bike club has money to fight that?

If your club has good liability insurance, the insurance company's lawyers will provide full coverage. That is probably THE major reason for having liability insurance - not for the money but for the lawyers you get to protect the insurance company's money.

Been there, done that!

Another perspective, is that if there is truly a devastating injury (spinal cord paralysis, for example), and someone from your club WAS negligent, you will feel really better if you DO have good insurance, as the costs associated with a devastating injury are truly overwhelming, and society, at least in the USA does not in any way provide satisfactory assistance, nor does an individual's private insurance (for example, most HMO's limit medical durable equipment to about $3,500.00 but the cost of an electronic wheel chair for an individual with a "high" - C-4 or higher - totally paralyzing injury is over $20,000).

Also, a modified van is $50,000, daily aides to assist with all areas of daily care run over $100 per day, rehab hospital $150,000, etc., etc., etc.

(also been there and done that)

You will be pleased to have the insurance to help, although the injured person will likely have to sue you to get your insurance company to pay.

Thanks to everyone for reading and responding. My primary concern is that we meet or exceed the expectations of the LAB and our insurer. I believe we will, but I welcome any reasonable suggestions on ways to go beyond what is expected to cover ourselves. If anyone has a personal experience with the LAB insurer, American Specialty Insurance Services and Mutual of Omaha, I welcome the input.

Chris,

Thanks for the recommendation for adding the bit about "accepting no responsibility...", but I think our waiver includes this. I'll make sure.

Roadbuzz,

I will try to find out more about Mr. Mionske. That sounds helpful. My brother is an attorney, but he would probably just roll his eyes at me and say little except, "I wouldn't involve myself in that if I were you..." so I'll just leave him out of it.

DnvrFox,

As I look at the coverage I see that the liability coverage seems ok ($1 Million general liability), however the coverage for the participants in the rides seems scant. Participants are eligible for up to $10,000 per person per accident and if a "participant" dies (or is dismembered) during one of our rides the limit on that coverage is $5,000. In order for the injured party to get more money they would most certainly need to file a lawsuit. And to get at part of the $1 Million that I, as an officer am covered with, I guess they need to show that I bear some responsibility for the accident. I wince as I type this!

Scott

Drop the two abreast/single file part, and replace it with obey all relevant traffic laws.

One of the main aims of incorporating and having liability coverage is to it more attractive for claimants to go after the club insurance than to go after club members as individuals. In many states it's an either/or situation, so the lawyers will chase the biggest bucks.

In a slightly different vein, I feel that when a lane is too narrow to share with cars, a large group does drivers a service by doubling up. It shortens the group, making them easier to pass.

By incorporating do you mean filing under one of the IRS categories? We felt this wasn't important when we established our club. Maybe we were wrong?

By incorporating do you mean filing under one of the IRS categories? We felt this wasn't important when we established our club. Maybe we were wrong?

NO!

A corporation is a separate legal body under state laws (at least those states I know about).

Typically you have

1. Articles of Incorporation filed with the Secretary of State. In Colorado, you can incorporate as a non-profit agency, but that has little to do with the IRS.

2. By-Laws as needed.

3. You need to publish certain items such as a "Doing Business As" certificate, etc.

4. A Board of Directors, including, in Colorado a required president and a treasurer.

The 501c3 (non-profit) process for the IRS is in addition to, and not really required.

The advantage of the corporation is that typically, the CORP is the entity in business, and suits are directed at the corp, with the Directors having little or no liability unless they have made egregious errors. When they sue, they sue the XYZ corportaion, not you personally. It protects your personal assets.

In Colorado, directors of non-profits have more protection than a director of a for-profit.

You really need to talk with your brother, or an attorney in your bike club, or another attorney, especially one knowledgeable in these areas in your state, as laws vary with state and time. A little effort up front will/can save a lot of trouble down the road. Perhaps it would be overkill, but at least check it out.

My non-profit's incorporation papers were provided "pro bono" by a local attorney firm.

Moonshot,

Where abouts in AL is your new club? I'm in Madison County.

Heyneda,

Most of our members are from Opelika or Auburn. We have a website at www.eastalabamacycling.org. If we're not too far away, you'd be welcome to join us! As you can see we need all the help we can get! ;)

Scott

Moonshot, tell you what I'll do help you out. Tonight when I get home from a meeting I'll post the waiver of liability that my bike club uses. You can use the whole thing or parts of it. All you have to do is change the wording.

Just another piece of data that might be useful. Here's the insurance agency our bike club uses:
http://www.mckayinsagency.com/bike-home.html

BTW, thanks for all the good input dnvrfox! This thread has been very educational.

The best way to make your waiver do what you want it to do is to have an Alabama lawyer look at it. I also agree with the suggestion to talk to a lawyer about incorporating your club to create a liability buffer between the club members and an injured person.

There are generally nuances to liability waivers that most people--and most lawyers--don't know. If you don't word something just right, the waiver might be meaningless. Also, some things can't be waived.

You might ask your insurance agent for a referral to an experienced lawyer. Your local bar association may have a lawyer referal service. Also, talk to friends who have used lawyers and been happy with the lawyers' service. Even if their lawyers can't help you, they may be able to give you the name of someone who can.

If needed, your club members should pool their money and fork over the dough to have the legal stuff done right.

FWIW the racing club in Bham AL a few yrs ago had regularly scheduled
training rides weekends in the late winter and several times a week as it
warmed up. You could go to their website and get a list. They stopped
this about three yrs ago and the scuttlebut was it was for liability reasons
ie they decided to put club money elsewhere than insurance and now the
individual members meet and ride but not under club aegis, except in races
where other rules apply. Steve

Thanks for the good replies everyone.

Our club is using the waiver recommended by our LAB insurer (like probably hundreds of other bicycle clubs) so I feel it is ok, but will likely consult with an attorney over it one day.

I went to the county courthouse last week and got a guideline to creating articles of incorporation document. I assumed I would get a "fill in the blanks" document, but articles of incorporation apparently must be a submission of the club, sort of like the constitution or bylaws.

The fields in the articles of incorporation for non-profits for Alabama require name of corporation, why it was formed, names and addresses of directors, name of incorporator and street address of registered office, much of what DenvrFox stated that Colorado requires. Alabama won't accept a PO Box for the registered office. I suppose now I should ask an attorney some basic questions relating to this document like, "What address should/can be given for the registered office?" and "What are the responsibilities for the person completing this form as the Incorporator?" and "Will the IRS take special notice of us after we incorporate?"

At least, I have a start on this now. The Alabama articles of incorporation are available online from the Alabama state secretary's office. Click here (http://www.sos.state.al.us/business/corpdl.cfm) to download the pdf file. This document is also available at the public library and courthouse or you could pay $10 at one of those legal doc websites to get the same thing.