RAQs: Recently Asked Questions

Topic: The Library of Things (and Bikes) - 5/22/2018
We are planning on installing a bike rack for our community members. With it begs the question, sh...
Posted: Tuesday, May 22, 2018 Permalink

MEMBER QUESTION

We are planning on installing a bike rack for our community members. With it begs the question, should we also loan bicycles? Many libraries already do. Here is but one example: http://cpl.prl.ab.ca/about-us/policies/bike-borrowing-agreement. My question is, as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that? Please help me identify any worst case scenario possibilities that I should be prepared for.

WNYLRC ATTORNEY'S RESPONSE

From tools, to bikes, to digital printers, an increasing number of libraries are providing access to more than information. 

I imagine someone has named this phenomenon, but I got a J.D., not an MLS, so I couldn’t find its overall name.  Therefore, I call it “The Library of Things.”  [1]

Joining “The Library of Things,” signals a sea change in the identity of a library.  It expands its lending model beyond information (books, media, data) to capability (printers, kayaks, cameras). It converts a community asset from a place of intellectual access to a source of physical action and production

This combined role  is re-framing community awareness of libraries.  But whether it’s called a “makerspace,” or a “tool library” or simply a “3D printer,” these resources are challenging traditional library laws and ethics governing access, liability, and patron privacy.[2]  The member’s question is a perfect example of the complications that brings.

What complications?  The “Library of Things” is not simply about accessing assets, but using them, applying them, and sometimes, riding them.  Most library law (parts of the education law, CPLR 4509, a robust array of civil rights jurisprudence, and a body of case law regarding library operations) is built around that premise that a library’s mission to provide access to information must be safeguarded at all costs.  But that jurisprudence is largely silent on the issues posed by using equipment to take action or produce something.  That function, while important, is not enshrined in the law.  Prediction: the Library of Things will soon start testing the conventions of libraries’ legal status quo. 

But let’s get down to the brass tacks (or the greased chains).  What about the bikes?

Regarding the member’s precise question (“…as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that?”), the answer is “no.”  The liability for lending equipment is a varied as the disclaimers and warrantees that equipment comes with, and in general, a simple policy and waiver are not the only things needed to anticipate risk and reduce liability.  So how does a library do it?

First (and I cannot say this enough): no library should contemplate the loan of functional equipment without thoroughly considering the risks and conditions of that equipment’s use.  The member’s question says it all: Please help me identify any worst case scenario possibilities that I should be prepared for.

When it comes to lending bikes, here an initial laundry list or “worst case scenario” thinking:

  • Will the library require helmets?
  • Will the library then provide helmets?
  • Can minors under 18 borrow them?
  • Can children under 14 borrow them?
  • Will the library provide information about the rules of the road?
  • Will the library require a safety demo before the first ride?
  • Has the library picked a demonstrably safe model of bike?  Is that model safe for all sizes?
  • Does it have all the required reflectors and bell?
  • Who will verify ridable condition before lending?
  • Who will deal with flats, rusty chains, and brakes?
  • How will the library respond to notice of an injury?
  • How will the library deter theft?
  • Who will own the bikes?
  • Who is providing insurance for every worst-case scenario?

Don’t worry…there are many ways to address the risks these questions highlight.  One solution, which can greatly ease the burden on a library, is to have the liability assumed (and insurance provided) by a third party through a rental contract.  With that approach, rather than accession the bikes, the library picks up the fee (rather like paying for access to a database), and the patrons, following an established policy, check the bikes out on their card.  In such an arrangement, the library’s contract, the underlying policies, and the agreement signed by the patron, could be drafted to promote safety and to shift the liabilities away from the library…an arrangement that must be confirmed by the right combination of contract provisions and proof of insurance.[3]

Second: no library should contemplate the loan of functional equipment without thoroughly considering the unique nature of their library.  Is the library a public institution?  Is it affiliated with a larger organization?  What are the limits of its insurance?[4]  Are there physical hazards near it that warrant enhanced care?  If your public library is at the top of a steep hill with a railroad crossing at the bottom, it should not use the same bike loan policy as the college library in the flat town with no CXS line.

Third (but in many ways, first): Is the contemplated asset critical to the mission of the library?  Is fulfilling the patron need for this equipment consistent with the library’s strategic plan and goals?  If the answers are “yes,” then addressing the first two questions should be easier, since clearly the identified risks and complications will be worth it.  If bikes with baskets help fulfill the mission to deliver books to the senior center, then bikes with baskets it is.

And finally, there are ancillary considerations.  Is the loan of equipment a “circulation record” subject to privacy laws?  Is the service as accessible as possible per ADA?  Do you need to follow a procurement policy when seeking a third-party bike provider or a purchase source? 

When developing a bike loan program, it’s essential to consider:

  • New York Vehicle and Traffic Law (“VTL”) 1236 requires that a bike have a bell (and expressly NOT a siren or whistle);
  • If ridden from dusk to dawn, a bike must have reflectors meeting the specs in 16 CFR 1512.16 (by law, all new bikes in the U.S.A. meet this standard);
  • Children under 14 must wear a helmet (NYS VTL 1238) (your insurance carrier might require ALL riders to wear a helmet);
  • It is a violation-level offense for a person over 18 to leave the scene of a bike crash causing MINOR injury to another without calling law enforcement (VTL 1240);
  • It is a B misdemeanor for a person over 18 to leave the scene of a bike crash causing MAJOR injury to another without calling law enforcement (VTL 1241);
  • Your insurance carrier will probably want to know about any injuries;
  • VTL 374 bars riding while listening to more than one earphone (no books on tape while riding); 
  • VTL 1235 bars carrying something that prevents keeping at least one arm on the handlebars (limit how many books your patrons are carrying home!).

That’s a lot, but there are resources to help you.  The library’s insurance carrier should be consulted at the outset.  The NY Department of Transportation maintains a list of current bike laws.  There are an array of groups that offer free safety training, and many civic organizations offer free helmets.  If possible, a third party vendor is the way to go, since it can help limit the library’s liability. Liability waivers should be custom-drafted to fit your library and the precise arrangements it has made for the bikes, but drafting your waiver should be the last step, after you’ve made your decisions about safety and conditions.

With a little coordination, you can address all the bells (but by law, leave off the whistles).

There’s a lot to wade through, but one thing is clear: libraries are evolving.  This means that with a few fits and starts, the law will evolve with them.  So once your organization decides to join the Library of Things, know the assets, know your library, stick to your mission, and roll with it. 

With the right planning, it’s as easy as riding a—

(Couldn’t resist).



[1] I invented this term as I wrote.  During editing, my husband (who does have a library degree) checked “Library of Things,” and found that it’s been in use for quite a while.  So I got to think I was clever for about 2 hours.

[2] I’m not a historian, either, but I really do think this change is significant.  Think about it: Ben Franklin, who founded this continent’s first formal lending library, was a printer.  But did that library give members free access to a printing press?  Or a candle mold? Lending things has not been baked into the model. 

[3] These documents should be reviewed by the library’s lawyer.  It doesn’t hurt to have them reviewed by the library’s liability insurance carrier, too.

[4] For instance, Camrose, AB, the library in the member’s question, is in Canada, a country with a markedly different approach to risk and health issues.

 

 

Tags: Policy, Collection Management, Templates

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