Mountain bike litigation: navigating uncharted territory.

Mountain bikes--in many ways two-wheeled versions of sport utility vehicles (SUVs)-- have become as madly popular as their four-wheeled SUV cousins. This is probably not a coincidence. For off-road enthusiasts who leave civilization behind in their Jeeps or Range Rovers, it's a natural extension to want to bike in that rugged terrain.

According to Patrick McCormick, marketing director for Bicycling Magazine in Emmaus, Pennsylvania, 10.2 million people rode mountain bikes on roadways in 1997, which he likened to people commuting to work in SUVs. Another 6.5 million rode mountain bikes off-road. The figures are courtesy of the National Sporting Goods Association, McCormick said.

Riding a mountain bike off-road--like driving an SUV offroad--can be dangerous, even if riders know what they are doing and are experienced "gearheads." Mountain biking is a physically challenging recreational activity requiring balance, anticipation, and technique. Crashing is often expected--even a point of pride for some die-hard riders, who consider the activity a blood sport. Becoming an "over-the-bar blood donor" by flying unexpectedly over the handlebars is a common injury, as is doing a "face plant," or hitting the ground face first after encountering a tree root or rock.

Of concern to trial lawyers, however, is the number of mountain bike injuries suffered as a result of equipment failures. These products liability cases are still in their infancy but are emerging as more and more cyclists venture off-road. Gary Brustin, a Beverly Hills, California, attorney who limits his practice to bicycle cases, said that only a few mountain bike cases have been filed to date. Most have resulted in confidential settlements. "These cases are out there," he said. "There are just not very many of them, and it's hard to say whether there ever will be a lot of them."

Brustin said a number of mitigating factors tend to complicate the liability issues in mountain bike products cases. For example, the degree of proficiency of the plaintiff rider is important in deciding whether to take a mountain bike case. If a rider regularly competes in races and has a demonstrated proficiency in doing so, that rider makes a better plaintiff than one who takes unnecessary risks or attempts to do more than his or her skill level allows.

Similarly, a biker who performs all the general maintenance on the bike in question and is skilled and experienced at doing so is a more desirable plaintiff than a self-admitted tinkerer.

In addition, because many mountain bike components are made overseas and shipped to the United States, tracing and naming the responsible manufacturers in the complaint can be difficult. An expert is often needed.

A determination must also be made about whether proper instruction was given to the plaintiff buyer at the point of purchase. Retailers who do not do so may be held liable, said Jim Green, an Asheville, North Carolina, engineer who specializes in bicycle accident reconstruction.

Brustin cited six categories of products cases specific to mountain bikes, listed in order of commonality: frame failure, handlebar failure, stem failure, fork/suspension failure, quick release failure, and oversensitive brakes. All but brakes cases result from mountain bike component breakdowns.

Frame failure cases. Since mountain bikes are engineered specifically for off-road riding, their frames are made of components designed to withstand the punishment of rough riding surfaces. Most frames are diamond-shaped for strength. According to Cincinnati lawyer Steven Magas, typical frames are made of aluminum and aluminum alloys, steel and steel alloys, titanium, and composite materials such as carbon fiber.

Frame weight and stiffness are the two most important design considerations, according to information posted by CyberCycle, which maintains a Web site at http://library.advanced. org/10333/mtn_bikers/get_start/ what_mtn/index.html/.

The lightest frames are generally made of titanium, an expensive alloy. Stiffness is important because it directs a rider's energy into moving the bike forward, according to CyberCycle. It is difficult to produce a lightweight frame that is also stiff, because stiffness is achieved by using thicker tubes, which add weight as well as strength.

Because mountain bikes are ridden so hard--and on a variety of rough surfaces such as rocks and tree stumps--the frames wear out more quickly than frames on conventional bikes, regardless of the components. For this reason, Magas agreed with Brustin that attorneys must carefully review a potential client's riding habits before agreeing to taking a case.

Brustin said he has handled two broken frame cases. Both suits were brought by riders against a large bicycle manufacturer, and both suits reached confidential settlements.

The first case involved a rider participating in a mountain bike competition with about 100 other riders. Each rider had to complete a two-foot jump. When the plaintiff rider landed, his bike frame broke where the head tube--the piece below the handlebars where the manufacturer's name badge is traditionally placed --connects to the flame tubes. The plaintiff suffered a shoulder injury requiring ongoing medical care.

In the second case, a recreational rider was riding into a small rut or ditch on a fire road when the bike frame broke in exactly the same way. The plaintiff was riding the same brand of bike and suffered a similar, but slightly less serious, shoulder injury.

Handlebar failure cases. There are many varieties of handlebars, and each type affects a cyclist's riding position differently. Mountain bike handlebars are usually flat, which puts the rider in a relatively upright position and aids in maneuverability. Many experienced riders add bar ends, which attach to the ends of the bars and extend at a right angle, allowing riders the flexibility of changing positions, such as tucking into a modified crouching position with the hindquarters extended rearward over the back tire for steep descents.

Like mountain bike frames, handlebars are made from a number of materials, primarily aluminum, steel, titanium, chromoly, and carbon fiber. Shock absorption and comfort are the principles guiding handlebar design and composition, according to CyberCycle.

Brustin said mountain bike handlebars can break or snap on impact due to the stress generated by the rider's body weight combined with the force transmitted from impact. Injuries to the shoulder are the most common type associated with handlebar-related crashes, he said.

Stem failure cases. A bicycle's stem extends above the head tube and attaches the handlebars to the bike's frame. According to CyberCycle, the angle, length, and height of a bike's stem determine a biker's riding position.

Stem failure is similar to handlebar failure. Both result from transmittal of stress forces, and both result in similar injuries. The injuries usually happen in a split second, and the rider often has little time to react or little memory of the accident because it happened so quickly, said Green.

Fork/suspension failure cases. All bicycles have front and rear forks that extend to hubs attaching the front and rear wheels. Rigid, or no-suspension, bikes are made for riding on smooth or paved surfaces. Mountain bikes, however, may have front suspension forks similar to those on dirt bikes. These shocks, as they are called, absorb impact when jumping over logs or other obstacles and increase responsiveness, allowing riders more flexibility on unpaved surfaces.

Rear suspension adds even more control and responsiveness. Dual, or full, suspension is considered the ultimate in motion control, speed, and responsiveness. Many high-end mountain bikes used for racing are equipped with dual suspension. Increased responsiveness, however, requires an advanced level of riding skill, as well as additional bike maintenance to ensure reliability and performance.

When suspension systems fail, shoulder and upper torso injuries are common.

Quick release failure cases. Many mountain bike accidents are caused by the unanticipated release of the front wheel. These accidents can be devastating, since the rider is ejected when the bike literally falls away from him or her, according to Magas. This happens because mountain bike wheels are typically held to the bicycle fork by a quick release mechanism, or QR. QRs use a hollow axle into which a skewer is inserted. On one side of the skewer is a locking nut, and on the other side is a clamp device. The nut is turned by hand until it is almost tight. The clamp is then tightened by hand, which locks the wheel to the bike.

"If the nut is turned too tight, the wheel will not rotate," Magas said. "If the nut is too loose, the wheel will stay on the bike until a bump or other obstacle causes it to prematurely disengage."(Steven M. Magas, Representing Bicycle Operators in Accident Cases: A Primer for the Non-Cycling Lawyer, Ohio Trial, May 1997, at 25.)

These "wheel out" cases, as Brustin calls them, often cause dental and facial injuries.

Green traces QR problems to the point of purchase. "Unless the retailer or seller properly trains the buyer at the point of sale, the potential for this type of accident is always there," he said. Particularly problematic is the common practice among serious riders of reselling their bikes as they upgrade. "People who buy a bike second or third in the chain of commerce are especially susceptible to QR problems because instruction is rarely given on used bikes," Green said.

Oversensitive brake cases. In the past year or so, a new generation of cantilever mountain bike brakes began to be mass-produced, according to Brustin. "These new brakes can be likened to the difference between conventional and power brakes on cars," he said. "The increased responsiveness is like night and day. Clients are going right over the handlebars when they encounter these brakes for the first time."

Brustin and Green both said that proper instruction at the point of sale is the only way to eliminate these accidents, which result in a variety of head and shoulder injuries. Wearing a helmet is highly recommended for all mountain-biking activity, they said.

Essential experts

Regardless of the type of component failure, however, Magas recommends retaining experts to help evaluate a potential mountain bike claim. Experts may include bicycle design experts, bicycle handling experts, metallurgists, forensic engineers, biomechanics experts, and human factors experts.

Magas said that mountain bikes, like other bikes, are usually made up of components from a number of different manufacturers. "The bike comes with a brand name, and may even say `Made in the USA,' but it may have been partially assembled overseas and shipped here, and it may have a frame made in Taiwan and shifters made in Italy," he said in his article.

According to Magas, an experienced expert should be able to determine a bike's point of origin just by examining the marks on the equipment. An expert will also know which manufacturers maintain working relationships with other manufacturers, which companies share resources and equipment, and which companies have adverse relationships and may have information about a competitor. Experts will also know which engineers used to work for the company in question, Magas said.

Manufacturing concerns

Green said the bike industry is unique because "it subcontracts out a lot of work on a global scale." Many of these subcontractors "shave a penny here or there, the results of which can be disastrous for riders," he said.

"Generally speaking, most major American manufacturers try their best to adhere to federal safety and design standards," Green said. "The problem begins when the subcontracting starts, especially in foreign markets where there is often little or no regulation."

As an example, Green said that in Taiwan, bicycle manufacturing is subsidized by the government, making it a burgeoning industry there. In Taipei alone, he said, there are 56 bicycle factories. "Some of these start-up companies literally produce frames on a dirt floor by the light of kerosene lamps," he said. "I've seen them doing it."

Since quality assurance is questionable due to these variances in foreign manufacturing, Green agreed with Magas that it is imperative for plaintiff lawyers to retain a competent engineer to assess a potential mountain bike claim.

Green said the single best piece of advice he would give to attorneys bears repeating: "Call in the experts early on, and certainly before you file the complaint."