Bird Rides, the company providing electric scooter rentals in L.A and other major California cities, can be sued by a woman who tripped over a scooter left by a rider on a sidewalk, setting up the potential for a stream of lawsuits against the company, after a California appeals court ruled Bird has an obligation to immediately retrieve its scooters from sidewalks.
A dissenting judge, however, warned the likely resulting flood of personal injury and nuisance lawsuits would all but drive such scooter companies out of business.
On April 10, a divided three-justice panel of the California Second District Appellate Court, Division Three, in Los Angeles, ruled 2-1 that Bird scooters left on the sidewalk can be deemed a “public nuisance” and the company can face lawsuits from people who may trip and fall over those scooters. This is so even if the so-called “dockless” scooters are improperly parked by users beyond Bird’s control and are only at the spot for less than two hours, a limit established by its city permit, the majority said.
California Second District Appellate Justice Anne Egerton
| Courts.ca.gov/
At the same time, the court’s majority ruled the same strict rules don’t apply to the cities that issued the scooter companies their permits. Only the actual concessionaire can be sued, the judges said.
The majority opinion was authored by Justice Anne H. Egerton. Justice Lee Smalley Edmon concurred.
“… It does not matter whether the Bird scooter that injured (the plaintiff) had been sitting behind a trash can for only a few seconds or several days, because all we recognize at this juncture is that the default duty of care … broadly encompasses Bird’s obligation to remove and relocate its property when a Bird scooter is in a location where it poses a risk of harm to others,” Egerton wrote.
In dissent, however, Justice Luis Lavin said the decision threatens the viability of an entire industry and business model he says L.A. city officials and California lawmakers have recognized as a part of a plan to reduce reliance on automobiles and to reduce carbon emissions.
“From a commonsense perspective, the majority’s view has little to recommend it,” Lavin said.
“Essentially, the majority suggests that plaintiffs be able to recover for injuries on a strict liability basis rather than to be limited to claims arising from negligence. If dock-less bicycle and scooter companies could be held liable for failing to immediately retrieve illegally parked bicycles and scooters, most of them, to avoid liability, would simply go out of business.”
The decision stems from a lawsuit filed by plaintiff Sara Hacala. According to court documents, she was walking with her husband and child on a busy Los Angeles sidewalk in late November 2019, when she tripped over the back wheel of a Bird scooter that was parked behind a trash can.
According to the appellate decision, Hacala said she could not see the wheel, because it was twilight, the wheel was not lit or reflective in any way, and the sidewalk was packed with people holiday shopping.
Hacala then sued both Bird Rides and the city of Los Angeles, claiming they are responsible for her injuries because they essentially created a public nuisance by allowing users to park the dockless scooter in that location and in other spots in pedestrian walkways.
Hacala is represented in the case by attorneys Rowena J. Dizon and Dean Ogrin, of the firm of McGee Lerer & Associates, of Los Angeles.
Bird has supplied the cheap electric scooters in L.A. since 2017. The company also supplies the scooters in many other cities throughout California and the U.S.
In California, they can also be found in San Francisco, San Diego, San Jose and Sacramento.
City officials have said supplying such “multi-modal” transportation options for city residents is key to reducing dependence on cars, and helping the city and state achieve emissions goals established under plans ostensibly enacted to combat climate change.
Unlike certain kinds of bicycle rentals, users are allowed to pick up scooters where they find them, as there are no docks to return the scooters to.
Under the city permit, among other conditions, Bird has two hours to remove a scooter from improper parking locations between the hours of 7 a.m. and 10 p.m. every day. The company is also required to have staff available to retrieve scooters on an emergency basis 24 hours a day.
When Hacala’s case landed in Los Angeles County Superior Court, Judge Mark Epstein dismissed the lawsuit, saying Bird Rides can’t be held responsible for injuries caused by pedestrians tripping over scooters left on sidewalks by users for less than two hours.
On appeal, however, the majority said Bird Rides has a legal obligation to constantly ensure its scooters are not left in places that might present a danger to the public, regardless of the company’s obligations under the terms of its city permit.
Failure to immediately retrieve their scooters from sidewalks or other walkways could result in lawsuits under the theory that the company was negligent and had created a public nuisance, the majority said in its decision allowing Hacala to resume her lawsuit against Bird.
They said the actual facts of each incident can then be heard in court at trial, to determine, for instance, precisely how long a scooter may have been left on a sidewalk, and how much of a hazard it actually presented to pedestrians.
In dissent, Lavin said he, like the L.A. County Superior Court judge, was “not prepared” to declare that every scooter parked on any sidewalk is inherently a threat to public safety.
So long as the company is abiding by the terms of the rules given to it by the city of L.A., the company can’t be held responsible for the decision by a user to park the scooter in a pedestrian way.
He noted the plaintiffs never even attempted to claim the scooter had been in that location for more than two hours before Hacala tripped on it.
“Accordingly, there is no basis for concluding that Bird caused or contributed to Hacala’s injury,” Lavin said.
Bird Rides has been represented by attorneys Stacy A. Alexejun, Ankineh Zadoorian and Evan Thomsen, of the firm of Quarles & Brady.