Just as a quick FYI the other side of the story is the the claim that he'd been drinking large amounts of cognac.
"Mr. Pena was allegedly operating a Bird scooter illegally on a city-maintained sidewalk with a BAC [blood-alcohol level] over the legal limit, tested positive for marijuana and in violation of the California Vehicle Code."
His claim is the city is at fault because police officers had seen him breaking the rules (no helmet, riding where he shouldn't and hadn't cited him).
"He said he was never stopped or cited, even though police officers had seen him numerous times."
It looks like he hit a visible obstruction, was not wearing a helmet and was impaired. My question is - should taxpayers be on hook for the millions he is looking for?
I ask because I was part of an effort to get community gardens up, and "liability" concerns by cities over what seemed like farcical situations was a major impediment. Then the more I read about the lawsuits they face, the more I realized that you could fall asleep drunk at the wheel, run off the road, hit some garden thing and sue the city because whatever garden thing had a slight impact on the outcome of an accident that was your fault. There is some kind of crazy joint and severable liability which means if city is even like 5% at fault, if no one else can pay the $10M, they might have too?
Wait, he's suing the city because he thinks his crash is city's fault for lack of maintenance, despite it literally being illegal to ride a scooter there, and, on top of that, being too drunk to drive?
Imagine a drunk driver suing the city after crashing into a tree growing on a median, for failing to clear the median to make it safer to drive there. It would be a amusing story in the nation's every single morning radio show.
I get that the guy is now paralyzed, but he has no case, all he's trying to do is to socialize his wrong choices onto LA taxpayers.
Slight correction, it's not known whether he was drunk at the time or not. He drank the night before. The city and Bird claim he was still drunk, he claims he wasn't. The article states
> As for whether Peña was legally drunk or high at the time of the crash, that is unclear. A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered. Avina told me that two toxicologists agreed that while cannabis may have shown up in Peña’s urine, there was no way to tell when it was ingested.
He'd drunk 750ml of cognac. Cedars noted he was under influence and smelled of marijuana. I think he'd stopped at a weed shop at 11AM or so on day of accident.
He was going downhill on a sidewalk covered by trash. It's actually not totally clear the sidewalk issue was cause of accident. He hit a tree parallel to the uplift, the city wonders how that was possible, if he hit the uplift and pitched forward it would be weird to hit a tree parallel to the uplift. There were other issues on the hill (trash etc).
There had been no service records to fix sidewalk in 10 year search by city.
Smoking weed impairs you. He smelled of weed and stopped at a cannabis store. Even ignoring all this, he accelerated down this hill, never applied the brakes. I'm just pointing out some other factors that may have caused his accident other than the city being idiots.
> He'd drunk 750ml of cognac. Cedars noted he was under influence and smelled of marijuana. I think he'd stopped at a weed shop at 11AM or so on day of accident.
Seriously? If true, then it would have taken him 30(!) hours to metabolize all that alochol[1]. Depending on how the timeline is (eg. drinks at 10pm, interview at 12pm the next day), it seems very plausible that he's over the legal limit.
750ml * 40% ABV = 300ml of alcohol. The human body can metabolize 10ml of alochol per hour, so that works out to 30 hours to metabolize it all. Even if it was 15 hours since he drank, his ABV would still be way over the limit[2]
I'd risk hypothesizing that "accidents like that" happen quite a bit more to people who are drunk. This is, after all, why we have laws prohibiting "driving while intoxicated" and not, say, "driving while fabulous".
I really don’t know how law works, but drunk drive prevention should be separate issue from attributing malice. Do we really incarcerate people who get t-boned while hungover?
"Wait, he's suing the city because he thinks his crash is city's fault for lack of maintenance, despite it literally being illegal to ride a scooter there, and, on top of that, being too drunk to drive?"
I assume he suing because he has nothing to lose but a lot to gain. The lawyers likely took it on gamble (contingency). He has a chance of settling since the risk and cost of litigation is huge. If he loses, there's no way he's paying any counterclaims for legal fees. So it's sort of like, why not? (Not that I think it's right)
Weirdly, there's no mention here of the fact that Bird littered the city with scooters that it is illegal to ride. Reminds me of the principle of "attractive nuisance" with respect to property. If someone uses something of yours in the way it is intended to be used, and they get hurt doing it, you cannot escape fault just because it was illegal for them to be using it at the time.
(you also cannot escape fault just by adding signs saying not to do the thing)
Seriously? So if a drunk guy takes my lawn mower and starts mowing my lawn, and runs over his own foot, I can be sued for his hospital bills? That is insane.
You can be sued if someone traipsed onto your property and drowned in your pool if you did not have a fence around it. You can be sued if someone trips over a root in your driveway even though it is a trespass. Why is it different for city property? Also, sidewalks are constantly used by pedestrians, bicyclists, and, even illegally, “scooterists”. Seems like if this was a dangerous root that the city was aware of and did not resolve or at least put up barriers, a strong case could be made that they knowingly allowed dangerous conditions.
For sure, the question is should it be this way? I mean, someone trespassing on your property trips on a root and sues you. That (in CA at least) does result in potential liability. Should it be this way?
The article is written from the point of view that Pena is a victim of a great injustice. It's not clear that is the case, though he may get millions from LA.
And heads up, when the city fights things like planting trees (which I'm a big fan of) this is why.
An Indian laurel fig tree, is considered a major invasive species in Hawaii, Florida, Bermuda, Central America, and South America. F. microcarpa is widely used as a street and ornamental tree in areas of coastal California that are free of regular frost. Its strong roots can lift sidewalks and pavements, and many California cities no longer recommend planting them. In Southern California, a population of the symbiotic fig wasp is now established, which allows the ornamental trees to produce fertile fruit. Seeds are spread by fruit-eating birds, and F. microcarpa can now spread without direct human help. Naturalized populations have been found in Los Angeles, Orange, Riverside, San Diego, and Ventura counties, including on buildings, bridges, and other structures, and as an epiphyte on other trees, especially palm trees.
I think for the reality of this case it has to do with the law as it existed at the time of the accident.
As for dangerous conditions (at least by common, reasonable expectations) being allowed on private property, that is something to be quibbled over in state legislatures. For me, the question is whether it is reasonable to expect someone to be injured and a dangerous public sidewalk which is used by people meets that expectation. If the city zones or builds a strip of concrete so people can use it for transportation, it should be maintained properly for that purpose.
Or we can say one should exercise reasonable care, and recognize that with 11,000 miles of sidewalk some bumps are not out of the ordinary.
Because this is why someone tells you that for legal reasons sidewalks can't exist. Because someone may sue you.
We used to walk through the woods, filled with roots. Now a largely flat surface is so hazardous with a small uplift that it deserves massive litigation?
Could we offer a sidewalk walking pass to folks who signed a waiver? Anyone unable to walk on a sidewalk safely is cocooned at home or in a car?
I agree. The problem is when laws leave things up to being "reasonable" we end up with arguments like in this case where they claim the city failed to take reasonable care of the sidewalk, or that the rider failed to exercise reasonable care, etc. So we leave it mostly up to a few jury members, who's opinions and views can vary wildly from case to case.
> We used to walk through the woods, filled with roots. Now a largely flat surface is so hazardous with a small uplift that it deserves massive litigation?
Big difference is that one expects to encounter roots in the woods. Don’t think that people expect to trip on roots in a sidewalk. My guess is that a root that caused a scooter to flip is more than a small uplift, but I am, of course, not privy to the details of the case.
"I think for the reality of this case it has to do with the law as it existed at the time of the accident."
I agree, that's true. However, for us on here, it can be beneficial to discuss the merits and potential changes of the law. It makes for interesting conversation about the law and how it could be better. After all, if we're strictly limited to the case there's no point in any of this discussion since we aren't the ones involved in it or deciding it.
You mention "dangerous" several times. We would need to define that. I'm sure there's some case law on that somewhere. My guess is it's highly debated and variable based on the circumstances of the case and opinions of the judge/jury. Especially when it comes to where the line is drawn on acceptable level of danger. This would also need to investigate contributory negligence. For example, the sidewalk may have been safe for the legal uses of the sidewalk but dangerous for the illegal use of scooters.
You also mentioned zoning. This is great! Most city codes require specific upkeep and allow for some variance. For example, some localities allow for a half inch difference in height of two adjacent pavings. I didn't see any pictures or measurements in the article, nor mention of the city's sidewalk code. But this is a highly pertinent area to investigate.
> This would also need to investigate contributory negligence. For example, the sidewalk may have been safe for the legal uses of the sidewalk but dangerous for the illegal use of scooters.
One could argue that it is not about legal use, but the expectations of use. Is it reasonable to expect people to ride scooters and bicycles on sidewalks regardless of legality? In this case, the rider could sue the city and the city could then sue the manufacturer of the scooter for making a dangerous product and causing the city harm.
However, Did the city approve use of and leasing of scooters? If so, why did they do this knowing that they may not be able to maintain the sidewalks and roads to a level that is safe for these types of vehicles? Personally, I do not allow my children to ride scooters because the wheels are too small in diameter to handle basic potholes, concrete heaving, roots etc.
"Is it reasonable to expect people to ride scooters and bicycles on sidewalks regardless of legality?"
Can I tresspass at your house and practice diving for a basketball on your concrete driveway? Would you gladly pay my medical bills and pain and suffering?
If this is the way the world works, we have a serious problem. At some point people need to exercise reasonable care over themselves and not expect to be babied. One could also argue that the rider should have a reasonable expectation that bumps exist on sidewalks (even if bumps over a certain size aren't legal - the same argument you're making).
> But here’s where the story takes a head-spinning twist:
> When Peña downloaded the Bird app and agreed to its terms in August 2018, he unwittingly indemnified Bird against any lawsuits. Bird now claims that Peña owes the company $322,171, the amount it has spent so far defending Los Angeles against the lawsuit.
> Even more abominable, Bird argues that if the lawsuit goes to trial and Peña is awarded damages, it is Peña who must pay the damages … to himself.
I feel like this is not a particularly unreasonable outcome. Riding a scooter has certain inherent risks. I feel really terrible for this guy, but I also am not convinced that he should get a big payday from bird because he happened to be using one of their scooters when he had his crash. Nor the city. Unless these roots were egregiously uplifted and the city had been informed of that fact.
"Whether the roots were uplifted and the city had been informed" and "was Mr. Peña irresponsibly impaired" are arguments about the merits of the case. The point of the article is that Bird agreed to indemnify the city (compensate the loss incurred to the other party), and Bird claims that by agreeing to the ToS, users agree to indemnify Bird. I am not a lawyer, but it seems untenable that the buck stops with the user in all circumstances.
> "Whether the roots were uplifted and the city had been informed" and "was Mr. Peña irresponsibly impaired" are arguments about the merits of the case.
They may also be arguments about the validity of the indemnity clause, in general, California law voids indemnity against acts known to be wrongful when done, and in many specific areas also against harms that are due to the “sole negligence“ of the indemnified party. Arguing that Peña had negligence (or worse) that contributed to the incident could thus, as well as being a merits argument, also be a an argument that the indemnity agreement is valid even if the city owes some damages (which is possible even if Peña is partially responsible.)
> The point of the article is that Bird agreed to indemnify the city (compensate the loss incurred to the other party), and Bird claims that by agreeing to the ToS, users agree to indemnify Bird. I am not a lawyer, but it seems untenable that the buck stops with the user in all circumstances.
There are generally public policy limits to indemnity clauses, and between organizations (e.g., the city and Bird) also often specific contractual limits (consumer agreements imposed by corporations generally will cover as much as the law allows.)
Those limits (on both agreements, since the absence of an obligation in Bird to defend the city would also mean, whether or not Bird is paying for the city’s defense, Peña doesn't have to pay Bird) will be addressed in the separate dispute between Bird and Pena over the indemnity clause in Peña’s contract with Bird.
Yeah this is an interesting outcome of the various contracts that were agreed to. I think the issue here is probably Bird's indemnification of the city for all suits related to the use of their scooters. The city should only have requested indemnification in the event the scooter was defective in some way, and Bird should not have agreed to indemnify the city so broadly. Likewise, the breadth of the user's indemnification of Bird might be unconscionable. Although in this case I would argue that it is leading to what appears to be the correct outcome, it's problematic as a general rule.
On the flip side, we probably don't want Bird to profit off of illegal and dangerous rides. Holding them financially liable gives them an incentive to take steps to ensure the safety of their riders. Otherwise, we're in the classic "socialize the cost, privatize the profits" trap.
I'd personally prefer to leave the enforcement of the law up to police. Private companies should focus on serving customers, not being their nanny, or their teacher. I think most people are more or less aware of both the actual law and the tacit law. Education isn't the issue.
Yeah I mean this definition of accomplice very clearly doesn't follow or bear any resemblance to the legal definition. Likewise, rental car companies are not "accomplices" to your speeding even though they could put speed limiters in the vehicles they rent out. It would also plainly be suboptimal for rental car companies to nag everyone about following the speed limit. It's not their proper role and it's not like anyone is unaware of how speed limits work.
Rental companies do not collect travel data from their customers. Bird does and Bird can trivially identify customers riding illegally and/or dangerously. They know, or should know, that they're renting scooters to people who put the public at risk. You can't just "see no evil" your way out of that liability.
1. There's no evidence "the public" is bearing significant risk here, as opposed to scooter riders bearing individual risk.
2. You are incorrect in your claim that rental car companies do not track travel data. Many rental car companies do indeed have GPS trackers in some their cars. Despite this they bear no liability for the criminal behaviors of their customers, nor should they.
3. I am not sure if you mean your last statement to be normative or declarative. If the latter, you are wrong. Scooter rental companies in fact have no legal obligation to enforce traffic laws, thank goodness.
That's how the legal system works. If you file a claim and it caused another party legal costs, the other party can counter sue to cover those costs. Otherwise, you end up with tons of legal costs because someone hurt themself doing things they shouldn't have been doing.
"Even more abominable, Bird argues that if the lawsuit goes to trial and Peña is awarded damages, it is Peña who must pay the damages … to himself."
True, most business/user agreements seem to circumvent the spirit of various laws. Honestly, civil law avoids protections of many rights (no right to counsel, lower bar for verdict, ex parte determinations, etc), and the public seems to have an appetite for increasing those actions depending on one's political bent (red flag gun confiscation or TX abortion law).
It would be nice to see more protections under civil law, and restrictions on which rights can be signed away.
Edit: it appears that people are disagreeing. Care to add to the discussion?
There is a really big discussion in the legal world right now about whether the indemnification clause in the scooter agreements is binding on consumers.
There are strong arguments made both ways. It's probably going to come down to the CA Supreme Court ruling on this.
I guess this is only big because there are lots of cases that rest on this? Is that because injury rates on scooters are rather high and there are lots of injury claims?
Anecdotally, a relative of mine was a doctor (before the time of electric scooters) and believed they were quite dangerous from the number of injuries they saw from them.
Do you honestly think that someone riding drunk and high and on the sidewalk (count them, three violations of the law at once) should be insured by Bird if they fuck up and have an accident? Come on, now.
The point is that Bird is using an arbitration agreement between them and an end user to not have to pony up according to the terms of their indemnification agreement with the city. This has _0_ to do with whether the gentleman brought it on himself.
> to not have to pony up according to the terms of their indemnification agreement with the city
I'm trying to wrap my head around this.
The city wants money from Bird to pay for defending the gentleman's lawsuit against the city.
Bird wants money from the gentleman since the lawsuit has to do with his scooter rental.
The gentleman wants out of his rental agreement so he isn't being billed for the lawsuit he brought against the city?
Even outside of being drunk and/or high and/or over the device weight limit and/or wearing a prohibited backpack and/or operating the device where it is not allowed, it sounds like he wants for everyone else in the city to compensate him for his misfortune? If he didn't get the sandwich shop job could he sue the city over that?
As I understand it, the problem is the defense strategy, not the particular case at hand. They’ve essentially composed an argument that makes it impossible for bird, or the city, to ever be at fault, irrespective of circumstance.
That in this case they shouldn’t be at fault is not the issue; if the case was more blatantly the opposite (the user was clearly not at any fault), bird would still be making the same argument
> They’ve essentially composed an argument that makes it impossible for bird, or the city, to ever be at fault, irrespective of circumstance.
That's not true; California law has limits on indemnity agreements, most notably that they don't apply to wilfull misconduct (and, in some domains, also not to harms due to the sole negligence of the indemnified party, but it's not clear to me that any of those apply here.)
So there are clearly circumstances to which the chain indemnity here would not apply, if either the city or Bird had willful wrongdoing. The specific circumstances Peña alleges in this case don't meet that description, though.
> The point is that Bird is using an arbitration agreement between them and an end user to not have to pony up according to the terms of their indemnification agreement with the city.
No, they aren't; they are ponying up and coming after Peña to pay them back. That's kind of how indemnity agreements, in general, work.
The point is that Peña is suing the city and, if the various indemnity agreements all hold up, also paying for the city’s defense against his lawsuit and paying any damages that the city is found liable for in that suit. Which means that, if the indemnity agreement holds up, the net result will be Peña paying all the legal bills and court costs and receiving nothing, irrespective of the outcome of the main lawsuit.
> My question is - should taxpayers be on hook for the millions he is looking for?
One of the reasons people in this situation sue for millions of dollars is because it can take millions of dollars to cover their medical expenses for the rest of their life. Maybe the whole system would work better if the taxpayers covered this medical care upfront rather than this circuitous route of only paying for the medical care after a lawsuit. The current system seems to be working for no one.
The part of the system that is not working is the part where people feel they can get excessively drunk without sufficient consequences to incentivize them to not get excessively drunk.
Edit: apparently, it is not conclusively proven the person in this incident was drunk.
Whether he was drunk or not is irrelevant to the root of the problem. Having a life altering accident like this in the United States cost hundreds of thousands if not millions of dollars. That puts people in a situation in which their only hope is to sue someone. It doesn't matter who is actually at fault. Fault isn't the motivating factor. The motivating factor is that people need money to pay for their care and a lawsuit is the most realistic way to get that money.
I will agree that making individuals responsible for excessive healthcare costs would be inefficient, but I think the current system with out of pocket maximums should be able to handle this.
What the current system needs to be tweaked to do is provide more subsidies do everyone has insurance (and a mandate for everyone to buy it, in lieu of additional taxes for single payer).
I'm not clear on the distinction you are trying to make with this comment. I said the taxpayers should pay in my first comment. I'm not pretending this care would be free.
Sure. The US pays far more than other first-world countries for health care and gets much worse health outcomes out of it. This is very well documented.
I'm aware of that stuff from the general healthcare standpoint. I'm asking about from healthcare expenses from these sorts of lawsuits. I'm wondering if just having costs covered would prevent the suits from happening or if people would still go after pain/suffering, lost wages, etc. It seems I didn't understand that you were just talking about the healthcare part.
Financially: It's a lot more efficient for society to cover all health care that's proven to be cost-effective regardless of who needs it or why. Putting gates on who is allowed to receive benefits costs more than it saves.
I tried to make it easy to read between the lines of my comment. I wasn't talking about his medical care. I was talking about everyone's medical care. And regarding that, there is a quote that has turned into somewhat of a meme that goes "I don't know how to explain to you that you should care about other people." Either you care about people in this situation or not. If you don't care, nothing I'm going to say will convince you to care.
Even people who generally care can reach a point where they don't want to, or simply can't. Stuff like the distractions of their own problems can prevent them from seeing larger societal solutions.
gee, the comment I responded to said "Why should I be responsible for his medical care?" in the context of a lawsuit where the 'his' under discussion got injured.
Then I said "I think the idea would rather be that you would pay 5 cents a year towards his medical care, rather than have to pay all of it." meaning that while the settlement for the lawsuit might be millions of dollars it will in fact not end up impoverishing the parent poster.
But for some reason you seem to think that it was about some other situation than the one under discussion here? I hope this summary has clarified the chain of very short messages for you, so that you no longer need labor under this evident misapprehension.
This article is about a adult man who was on drunk, on drugs, and driving an electric vehicle on a public sidewalk. How is this comparable to public education?
You shouldn't be personally, but collectively as a society we should try to look out for each other as a general moral rule, instead of a "me first" pure capitalistic mindset.
Same reason that we try to help the homeless, the less fortunate, etc.
I wonder what the breakdown of costs are after SS disability and Medicare.
I do agree that costs at a case level could be lower without litigation, but I wonder what the overall cost would come out to. Basically, someone's paying for the care, but the question is how does, or what, shuffling of which bucket it comes out of will be beneficial?
> My question is - should taxpayers be on hook for the millions he is looking for?
If you're asking from a moral perspective - absolutely not. I don't know what the law says though, as that's the only thing that matters.
I've personally had a fall on my head while snowboarding and I'm glad I was wearing a helmet, as all I got was the wind knocked out of me. I can't imagine I'd ride my bike or a scooter in traffic without one.
Liability exists under the law in these cases in California. This came up in the Cabral case.
"On February 27, 2004, around 9:00 p.m., Decedent (Cabral) was driving an F-150 pickup truck (pickup) eastbound in the number three lane (of four lanes) on Interstate 10 (I-10) in San Bernardino County. Juan Perez testified that he was driving a big rig behind Decedent for some distance. He estimated Decedent's speed to be around "70, 80," miles per hour. Perez opined that Decedent appeared to be intoxicated or falling asleep because his pickup was swerving left and right within the number three lane. Perez saw the pickup suddenly turn right, cutting in front of another big rig truck in the number four lane, as if attempting to exit the freeway. The pickup crossed the number four lane and the paved shoulder of the freeway and then hit the back of Ralphs's big rig, which was stopped in the dirt area approximately 16 feet from the number four lane. Perez did not see brake lights activated on the pickup, nor was there any indication that Decedent tried to reduce speed or avoid hitting the big rig."
Testimony was that he either fell sleep or was suffering from a medical conditions (350lbs). He was speeding, weaving all over the place, then crossed over the lane next to his and then into dirt at side of road and then traveled a pretty long distance and then hit a grocery truck that was stopped 16 feet away from side of road, so basically another two lanes over.
And yes, Ralphs had to pay damages, even though their truck was damaged etc.
Important to note that tort law apportions responsibility (aka liability) for damages amongst all parties to the tort, so Ralphs would have been on the hook for at least some of the damages since their employee was the proximate cause of the accident (i.e., their driver's actions most directly led to the accident), even though the decedent was impaired or asleep.
Correct, that was the outcome, even though the decedent crashed INTO the Ralphs truck (so lay person might think decedent would owe Ralphs if anything), instead Ralphs was ordered to pay decedent.
This is where the law diverges from what people imagine.
The decedent's estate was also ordered to pay Ralph's. It's just the $4,725 in damages that Ralph's was awarded on their claim for damage to the truck was substantially less than the wrongful death award even after the latter was reduced to 10% of the damages the jury found because of Cabral’s 90% fault.
> 16 feet away from side of road, so basically another two lanes over.
Interstate highway lanes are 12 feet, so 16 feet from the last lane isn't another two lanes.
> And yes, Ralphs had to pay damages, even though their truck was damaged etc.
To be specific, the jury found the Ralph's driver 10% responsible for the accident for illegally parking in the emergency parking only lane, and Cabral 90% responsible due to...all the other stuff. Ralph's therefore had to pay 10% of the damages that were found for wrongful death of Cabral, Cabral's estate had to pay damages that Ralph’s was found to have suffered. The former amount was greater than the latter, so in net Ralph's ended up paying.
"And yes, Ralphs had to pay damages, even though their truck was damaged etc."
Contributory negligence and the clean hands doctrine doesn't exist in California?
I'm not going to sugarcoat it... this seems insane and makes me glad I don't live there (I get that it's a low risk for getting sued, but still, the logic required to get to this judicial opinion makes me nervous about what else could happen).
> Contributory negligence and the clean hands doctrine doesn't exist in California?
Contributory negligence is the rule in 5 jurisdictions out of the 50 states plus D.C., and, yes, California isn't one of the 5. It's on the opposite end, one of the 13 pure comparative fault jurisdictions. The other 33 US jurisdictions are modified comparative fault, with either a 50% or 51% cutoff for the proportional responsibility beyond which a plaintiff is barred from recovery from other parties responsible for damages.
Really, I find the pure comparative fault approach (wherein everyone is generally responsible for the harms created by their negligence) the most sensible, though I understand why the modified comparative fault approach appeals to some people. Contributory negligence seems to me to be an insane rule.
Modified comparative fault seems to make the most sense to me (it was actually the one I was thinking about when I said contributory negligence, refering to the action and not the rule).
The only real issue I have with the pure method is that theoretically a lower bar to bring a suit might encourage more to be brought and can lead to some perverse outcomes like the Ralph's case.
I mean, I don't have a lot of faith in the justice system based off of things I've personally seen in it. But even just taking the Ralph's example (which admittedly I should look into more), the impact of the truck being parked there seems like it should be essentially nonexistent. He was going to hit something, hard. The only real question was how much did the truck being parked there contribute to the outcome as opposed to hitting some other object. Without any real details, it seems that the outcome would have happened anyways, especially if he was simultaneously suffering from some medical condition.
> But even just taking the Ralph's example (which admittedly I should look into more), the impact of the truck being parked there seems like it should be essentially nonexistent.
Reserving any judgement on whether this is true or not, if it was, that's a problem with the jury determination of fault, not with comparative negligence, per se.
By avoiding sharp cutoffs, pure comparative negligence minimizes the risk of truly perverse results due to jury misassignment of fault. (Pure contributory negligence is the absolute worst for this, where finding something that had no contribution on the part of the person who suffered damage had even minimal contribution eliminates all recovery.)
> He was going to hit something, hard.
Maybe; I mean there are lots of ways a speeding vehicle with an intoxicated or otherwise medically incapacitated driver that has gone well onto the shoulder of an interstate can end up coming to a stop, and not all of them involve hitting something hard (though most of them aren't good, to be sure.)
I guess what I'm saying is that if someone can get half a million dollars from running off the road and hitting someone else who was at minimal fault (10%), then what's the point of any activity that exposes you to risk? Even with insurance, you end up paying a bunch of money. No point in starting a business if a driver can screw up after not obeying you and you still get sued.
"By avoiding sharp cutoffs, pure comparative negligence minimizes the risk of truly perverse results due to jury misassignment of fault"
It seems this is only true near the cutoff, and not near the margins. Just to continue on the possibility that this 10% determination was a jury mistake, that a half million dollar mistake. I'd hardly call that minimal. This case is far from the cutoffs of other states. This seems to also support my idea that the modified approach would reduce litigation, which I see as a benefit.
I personally believe in universal health care and would say that his medical expenses SHOULD be covered without any sort of legal involvement. Hell, dude going around high and drunk probably needs to be in an addiction recovery program as well.
The reason he's suing is because he can't afford his medical bills and the legal bills end up compounding the problem. Were there no medical bills, the lawsuit he could bring up would pretty much be pain and suffering... maybe.
So, should taxpayers be on the hook? Partially in the sense that I think all medical problems should be publicly funded. Morally, removing discretion around who gets medical treatment and treating everyone ends up being a good. Will you waste money on people doing dumb things? Sure. However, you won't waste money having a giant system of people trying to weasel their way out of every payment (insurance). More people get their healthcare needs taken care of. An absolute net good.
The interesting thing is how we might adjust as a society with something like universal healthcare. In theory, it's possible the accident might not have happened at all if we decided as a society that e-scooters, alcohol, and weed, were all things that lead to expensive care, and we highly restricted them to help control health system costs.
Although it also depends on how that universal system works. For example, some systems require people with "preventable" conditions to pay an extra tax for their services.
> if we decided as a society that e-scooters, alcohol, and weed, were all things that lead to expensive care, and we highly restricted them to help control health system costs.
Perhaps e-scooters could be restricted. However, intoxicating substances are pretty much impossible to stop (We've tried). The problem is that most intoxicant substances can be made anywhere with a very low amount of equipment.
So, rather than focusing on restricting access, IMO, the better route is focusing on supporting behavior/lifestyle changes.
Though, if we are talking about fixing costs, then one thing that'd help tremendously would public access exercise facilities. It's a lot cheaper to operate a gym than a hospital.
"Though, if we are talking about fixing costs, then one thing that'd help tremendously would public access exercise facilities."
I kind of doubt a lack of facility is the blocker. There's nothing stopping people from doing body weight exercises in their home.
"However, intoxicating substances are pretty much impossible to stop"
True, we would only want to restrict it, not stop it. Basically, make the bar for the legal stuff higher enough to persuade people not to use it, but also set it lower than the illegal stuff. Of course it also needs to be accompanied with the lifestyle changes.
Just look at tobacco - legal, heavily taxed, providing minors is heavily punished, large warnings required, even requiring manufacturers to pay for commercials to smear their own product. This could be applied to just about anything.
> Just look at tobacco - legal, heavily taxed, providing minors is heavily punished, large warnings required, even requiring manufacturers to pay for commercials to smear their own product. This could be applied to just about anything.
I could definitely see getting more on board with that. Seems like such campaigns have been somewhat successful in multiple regions. The main thing I'm against is the criminalization of consumption, that's a fools errand.
More good education early on is a lot better than what I grew up with. The DARE program was such a joke.
It was so long ago, but I though it was very detailed and informative. I think it's enough to keep curious kids uninterested in using. No amount of education will keep the hopeless person from using. And I mean hopeless as in they lack hope for their life and feel its over already, then they choose to use anyways knowing about the effects.
> Just as a quick FYI the other side of the story is the the claim that he'd been drinking large amounts of cognac.
You're not quoting the article accurately:
> lawyers for the city argued [...] that he had consumed a “large amount of cognac” the night before
> A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered.
It's very unlikely that his BAC was over the limit the day after (he was going to a job interview!), and regarding the cannabis in the urine, that stays detectable long after the effects are gone.
These allegations are tactics to discredit the plaintiff (note how vague they are, no hard numbers) and make him unsympathetic, and by looking at many of the comments here they're working.
Except the doctors noted evidence of the smell of weed, all their case notes and discharge notes indicate intoxication and bloodshot eyes. The plaintiff stopped AT a weed shop on the day of the accident.
This is not a criminal trial, a jury may weigh some probabilities here. 750ml of cognac drunk the night before, a stop at a weed shop, 11,000 miles of sidewalk, and the claim the city is at fault for this accident and the plaintiff is not.
Hell no tax payers shouldn’t be responsible. He took a risk, now he must accept the consequences.
This is a reminder that at any moment of the day you can encounter a situation just like this. Take care of yourself. The world will kill you if you let it.
At the risk of sounding heartless in situations with liability, I try to think of the long term consequence of a ruling indemnifying this driver.
Even if he hadn't had alcohol or tested positive for marijuana, he shouldn't win this. Because if he did win, then it means living in a nanny state à la Singapore, police officers need to make sure that he doesn't break the rule, trees need to be cut because they're a danger to society and are too unpredictable (reminds me of the Guangzhou officials who cut 130,000 banyan trees). This is not a world I want to live in. I want to live in a world where you can decide to take risks but the consequences of those risks are yours alone. If he decided to ride a bird and didn't take any precaution or wear helmet, it's his fault.
If however, he did this and caused an incident, it would also be his fault and peope impacted by the accident would be in their rights to sue him, since he is the one who took the risks.
That was alleged by Bird and the city, but there appears to be no proof of it. Specifically it says
> lawyers for the city argued ... that he had consumed a “large amount of cognac” the night before
Sounds like he was drinking the night before the accident, and the city tossed out an evidence-free allegation that he might still have been drunk the following day on his way to a job interview with no evidence at all, in the hopes that some people wouldn't pay close attention to the details...
Also, people don't usually go to job interviews drunk.
And many people don't even realize that if they drink a large amount (10+ drinks) the night before that they are probably still drunk the next day. People just assume they slept it off.
> There is some kind of crazy joint and severable liability which means if city is even like 5% at fault, if no one else can pay the $10M, they might have too?
Joint and several liability isn't crazy when you realize that by the time a civil case gets to court it is often the case that some party must get screwed.
Suppose X and Y are both at fault in something that caused serious injury to Z. Z was not at all at fault. Further suppose that X is 90% at fault and Y is 10% at fault, and that a just damages award to Z would be $1 million.
The most just outcome would be that X pays $900000 to Z and Y pays $100000 to Z.
But that only actually works if X can pay $900000 and Y can pay $100000. Suppose either X or Y is cannot pay, or maybe can eventually pay put it is going to take a lot of time and effort to squeeze the money out of them.
Then either Z gets screwed by not getting their full damages paid or by having to spend a lot of time and effort collecting them, or whichever one of X and Y that has money gets screwed by having to pay more than their fair share upfront.
With joint and several liability the idea is that if we have to screw someone, which we do in this situation, it is better to screw someone who was actually at fault than to screw someone who was not at fault.
A party that ends up getting screwed by having to pay more than their fair share can then sue the other at fault parties for the overpayment. So if say it would be hard for Z to collect $900000 from X they can get it from Y, and then it is Y's problem to figure out how to squeeze $900000 from X.
> A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered. Avina told me that two toxicologists agreed that while cannabis may have shown up in Peña’s urine, there was no way to tell when it was ingested. (Cannabis can be detected long after its effect fades.)
Sounds like its he-said-she-said about the blood alcohol test.
And metabolite tests for cannabis ingestion are useless for determining intoxication.
So it sounds like there's no proof he was drunk and/or high at all.
At the same time as a 50 year old GenXer I see all these "kids" (which is probably under-30 these days for me) riding around on various e-contraptions without helmets and I mutter various old-person shit to myself about how they're going to crack their head open doing that.
The problem is though that the legal machinations here that the scooter company wants to apply are horrible and indemnify them against anything, even if the person was otherwise being careful and the scooter just falls apart due to poor design and maintenance.
There's no common sense to be found anywhere here as far as I can see.
"A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered."
"The city lost a motion to get the lawsuit thrown out and turned to Bird for help with the case. In the failed motion, lawyers for the city argued the city did not know about the broken pavement or fig tree, that Peña accelerated down the hill (which Peña denies), that he had consumed a “large amount of cognac” the night before, that he was over the scooter weight limit by 15 pounds and was wearing a backpack."
The night before.... for the cognac side. Not that I agree with the victim, but "drinking large amounts of cognac" needs context of "when".
“ My question is - should taxpayers be on hook for the millions he is looking for?”
Obviously not, but with how crazy society has gotten, maybe these Idiocracy-lite situations will become more common and they will have to be priced-in; meaning that eventually nothing can be done because everything will be too expensive due to liability and labor shortages.
Unfortunate that this is the top comment at the moment - there is zero evidence he was impaired at all. Others have quoted the exact lines stating so in the article.
> When Peña downloaded the Bird app and agreed to its terms in August 2018, he unwittingly indemnified Bird against any lawsuits. Bird now claims that Peña owes the company $322,171, the amount it has spent so far defending Los Angeles against the lawsuit.
This is the insane part of the situation, and what everybody should be outraged about.
You can make a great argument that the rider wasn't following the rules, perhaps was impared, and that taxpayers shouldn't be on the hook for damages (in any case, they aren't, since part of the agreement between Bird and the city is that Bird has to cover damages).
HOWEVER, it is extremely unfair for the terms and conditions of an app to say, "If you use this, you can't sue us, and if you sue us anyway, you have to pay for the cost of our defense against your lawsuit."
That essentially circumvents the entire civil legal system in the United States.
It's a shame that this has come to light in a case of such questionable liability. But don't let that cloud your perspective on this part of the case.
Let's imagine a case where Bird was clearly at fault, and the rider was following all the rules.
Should a company be able to indemnify itself against any liability as a condition of using its products?
Certainly not, at least if you believe in the core principles of the American civil legal system.
Isn't circumvention of the legal system the entire point of Terms & Conditions? If both parties were fine with the law as it stood, no one would need to sign anything.
Thankfully, to the chagrin of fringe internet libertarians, the law rightfully ignores things like "code is law" and does not define consider "I agree to have no rights" to be something you can consent to consent to.
How do you feel about FOSS, and the things that many FOSS licenses say about liability?
Would you feel better about the Bird T&C, if they had 2 separate options:
- 1.) The current "you can't sue us" deal.
- 2.) An otherwise-similar "you CAN sue us" deal. But at a far higher price, since the insurance they'd need for that deal would not come cheap, and close to zero people would pick that option...
I think you could sue the FOSS project if the author knowingly and intentionally gave you malware under the pretense of normally functioning good faith software.
Otherwise the license is more of a reminder that you didn't pay for it and aren't entitled to bug fixes, features, support, compatibility, etc..
Broad clauses aren't themselves problematic, but if the contract is take-it-or-leave-it (a contract of adhesion with no real negotiation), there's a different angle to approach it from.
He didn’t sue Bird, he sued the city for not maintaining the sidewalks. Whether or not that case has any merit is debatable, but the mechanism under which the city held Bird liable and then in-turn Bird held him liable is utterly insane.
Beyond the question of who is responsible, or if this person is owed anything for the risks they took, my biggest gripe with these stories isn't Bird or scooters, or governments bureaucracy or litigiousness, but instead, simple the dollar amounts involved.
Bird claims it has spent $322,171 defending LA against this suit - which was filed in November 2019. The average US Salary in 2019 was $32K. That means that 10 man-years of average-american time has been spent on this case? Or one lawyer, making 10x the average american's salary, working full time? On the flip side, the guy is suing for millions and was going to work at a sandwich shop. Is he expecting _more than a lifetime_ worth of value from society because he had an accident?
These stories would all be so much less offensive to the senses if the numbers were within the realm of rationality. If he was suing for 150k and 2.5 years of legal defenses cost 50k, the outcome just wouldn't be nearly as important. As is, either "big corporation victimizes little guy" or "some drunk guy gets millions for falling down". It's a no-win situation.
What Bird is really fighting over in this case is the indemnification clause in their user agreement. If this clause is not found to be legal in California, the potential liability down the road could be millions in other cases.
What Bird is really fighting for here is their entire business. If Bird has to take on liability for any accident on their scooter, regardless of fault, then there is no scooter business. Heck, potentially no sharing type business at all could exist then.
> On the flip side, the guy is suing for millions and was going to work at a sandwich shop. Is he expecting more than a lifetime worth of value from society because he had an accident?
This is the problem with the completely stupid healthcare system in the U.S.: this kind of moralistic outrage only makes sense in the context of our ridiculously overpriced costs which are the way they are because of perverse incentives in our healthcare system. If we had single-payer health care we'd probably be spending less on healthcare overall (https://decisiondata.org/news/how-much-single-payer-uhc-woul...), and this would never have been a news story.
But, instead, we have these kinds of framings where someone did something stupid and has no way out of their situation besides desperately looking for some way to cover their costs without being completely screwed. How would any of us deal with this if we were in the same position? Coming back to "well he did it to himself" overlooks the reality of our system which is that so many folks with health issues have no options, regardless of how few mistakes they've made. And if we start demarcating who should and shouldn't get health care because of whatever stupid thing they have done, then I imagine we'd first say "well, all you smokers and drinkers, you don't get to have health care any more. Same for you overweight folks. Also you kids who got hurt because your parents weren't careful enough about protecting you when you were in a car/riding a bike/in a pool/etc.--sucks to be you." Etc. etc. This is first and foremost cruel, and more to the point, it is an absolutely ineffective way to determine public policy.
If we stop applying these regressive moralistic arguments to who should and shouldn't have healthcare, and instead frame things in terms of the kinds of public health outcomes we want and the type of policies that produce those outcomes, we get to profoundly better results (which can be seen by considering how other developed nations with non-dysfunctional healthcare systems function, if nothing else). But as far as I can tell, based on my lived experience over the course of almost five decades, Americans mostly don't seem to want to concede to their fellow citizens any of this kind of pragmatism and compassion until they themselves find themselves in similar situations. The majority of the responses in this thread--including yours--seem to bear that out.
Most lawyers don’t make extravagant salaries. And a lot of routine stuff isn’t that expensive. But Bird is probably using some big city law firm with expensive partners and highly billed associates with lots of billable hours making sure every i is dotted. Legal bills for this sort of thing add up fast.
Professional services add up quickly. How many people here are going to provide 2.5 years of coding services even part-time for $50k?
Source? The BLS says the average is $56k in May 2020[1]. Unless there's some sort of massive wage inflation that took place between 2019 and then, your $32k figure seems suspect.
Not commenting on the specifics of this case because the article is paywalled, but if one suffers an injury that will result in a lifetime of medical expenses / disability, it could absolutely make sense to sue for a lifetime of salary.
So, he was drunk, high, and riding on a sidewalk without a helmet. And now it's the City's fault?
Do we blame the city when drunks crash their cars in to lane barriers? Or trees?
I don't like those scooters and I think they are dangerous - but even the man in the story admits he rode them many times previously, and knew he was not supposed to ride on the sidewalks. He knew what he was getting in to.
This trend of "no one is ever responsible for their own actions" is not going to end well. When do we start holding people accountable?
No, that's what Bird is saying. In fact they're expressly saying he was drinking the night before. There was no ABV test done on him, so there's zero proof to their accusation. His blood showed levels of cannabis. However, if you've ever had to pee in cup you also know that cannabis shows up in blood/urine far after you've smoked or consumed.
They're trying to bash his reputation with utterly unprovable claims to make him seem like a degenerate (because, yea... who drinks and smokes weed in LA?). If he wins he can probably come after them for slander now too.
> His blood showed levels of cannabis. However, if you've ever had to pee in cup you also know that cannabis shows up in blood/urine far after you've smoked or consumed.
yes, metabolites show up for a long time in urine, making it useless for this sort of thing.
they don't stick around nearly as long in blood, and it is suitable (along with expert interpretation) for getting a sense of whether or not somebody recently high.
> However, if you've ever had to pee in cup you also know that cannabis shows up in blood
peeing in a cup does not give you insight into this.
Bird shouldn’t be in the middle here. The fact that it was a Bird scooter instead of his own seems to be immaterial, the scooter itself seems not to be at fault.
If you’re illegally operating (invalid vehicle for the road), your ability to complain diminishes quite a bit. Sucks to be that injured, this is where socialized medicine sort of helps out.
He was allegedly “drunk or high” and it remains to be seen if wearing a helmet in this case would have prevented becoming a paraplegic based on how his accident is described. His neck (cervical spine) injury is likely the primary cause of his disability rather than the skull fracture.
I think we are all ignoring the elephant in the room: absolutely terrible infrastructure for anything besides car. The US collectively has spent billions (trillions?) in new roads and highways but not much else in between.
So when are we going to hold ourselves accountable for the mess that O&G has gotten us into and reverse this trend?
If you actually read the article, you would have noticed that birds lawyers are contending that he was somehow intoxicated from drinking the night before. Also anyone with a passing familiarity of marijuana would know that the half life of it sitting in your bloodstream is almost an entire month.
Hard to feel bad for people in these kind of scenarios. Accidents happen, if you don't take your responsibility (be sober, use a helmet, ride where you're allowed) you have no right to complain about whatever happens next. It's not society's fault if you're a danger to yourself and others, actions have consequences, too bad for his legs, but at least he didn't kill a kid
I hate how people use these ride sharing vehicles (reckless driving, under influence, park wherever the fuck they want), I very rarely use them but when I do I act as if it was my own scooter and I don't feel like I'm under some sort of magic legal immunity shield
> He said he was never stopped or cited, even though police officers had seen him numerous times.
So what, it's still his fault, he's low key trying to blame the police for that (?)
> when his Bird crashed into a sidewalk
_He_ crashed into a sidewalk
> “This guy lives on Medicare. He’s paralyzed.”
Are we supposed to feel bad for him ? He did that to himself and will be getting tax money until he dies
> Peña filed a lawsuit against the city of Los Angeles, alleging it was responsible for the crash.
Yeah sure, everything but his own actions...
> operating a Bird scooter illegally on a city-maintained sidewalk with a BAC [blood-alcohol level] over the legal limit, tested positive for marijuana and in violation of the California Vehicle Code.
...
I shit on these companies as much as the next guy, but come on, this isn't a Bird problem, or a ride sharing problem, it's a dumbass problem
If you choose to ride a scooter and you hurt yourself because you ran into some tree roots that is on YOU. It is not the city's responsibility to provide a perfectly manicured path from arbitrary point A to point B as you drive too fast while potentially high.
"I always knew that catastrophic e-scooters crashes would become part of the urban landscape."
The author really got her "I told you so" in early here. It is easy to be right if you are negative about everything and wait long enough.
> If you choose to ride a scooter and you hurt yourself because you ran into some tree roots that is on YOU. It is not the city's responsibility to provide a perfectly manicured path from arbitrary point A to point B
Personally I disagree. Businesses are all expected to comply with the ADA, why not the city? Funnily enough, L.A. has been found to be out of compliance and settled multiple lawsuits about this exact issue. To the tune of 1.3 billion over 3 decades. [0]
Really? You think it's the "city's responsibility to provide a perfectly manicured path from arbitrary point A to point B"? What if it was a small rock that somebody put there instead of tree roots? Would that be the city's fault too?
I don't understand why we're getting up in arms about this.
1. When you ride a Bird scooter, you agree to accept liability for all injuries, possibly with the exception of gross negligence (even if you didn't read the fine print, you'd be insane to think it didn't say that).
2. Peña sued the city for not maintaining a sidewalk and causing his injuries.
3. Bird indemnified the city for all liability involving Bird scooters.
Those three things together make the situation that "seems abominable", but they're really quite reasonable. Basically the city isn't liable, and neither is Bird, and it's not actually a surprise to anyone except those writing breathless news stories.
There's plenty to be up in arms about over forced arbitration and indemnity between well-funded corporations and customers just trying to get home safely after a night out.
Bird in particular likely knows 90% of their customers are violating their terms and conditions in some way. Between lack of enforcement from the government and legal indemnity from their customers, they have no incentive to improve the safety of their service.
Taken to extreme, why even have a legal system when you have to opt out of it to do anything?
Tbf I don't think the city should be liable. My quote is still remarkable if not absurd. Most people I know think our legal system is so convoluted and far removed from it's intention and I think the quote speaks to that
> In response to my request for an interview about the case, a Bird spokeswoman emailed:
> “... The accident occurred while Mr. Pena was allegedly operating a Bird scooter illegally on a city-maintained sidewalk with a BAC [blood-alcohol level] over the legal limit, tested positive for marijuana and in violation of the California Vehicle Code.”
The rest of the comments notwithstanding, this is incredibly misleading and scummy wording on Bird’s part. The tests, according to the article, assert THC consumption within the testing window (about a month, or maybe longer), not marijuana consumption at the time of the accident.
Is this any more "scummy" than Peña blaming the police for not stopping him when he was clearly breaking the law? He's not directly blaming the police for his injury but the implication is clear as day. If they would have cited him for breaking the law, he would not have been injured. He goes so far as to claim they saw him and knew he was breaking the law.
Bird indemnifies the City of Los Angeles as part of their agreement to roll out the scooters. Bird then makes their users indemnify Bird in the user agreement.
The key to this whole thing is for a judge or jury to toss out the latter indemnification as unconscionable. If this indemnification clause is found to be unconscionable here, it could potentially open up Bird to significant liability in future cases. Bird is going to fight tooth-and-nail to make sure this is not the outcome, or offer to settle once it has enough information to figure out that the legal winds are not blowing in its favor.
Why should Bird be responsible for anything here though? There's no evidence or claim that there was anything wrong with the scooter that caused the accident...
No one made them do that. They did that because they wanted the right to rent the scooters in the city and the city knew that would come with real problems because shit happens. So Byrd says "Don't worry, we will accept responsibility for any problems."
Well they got the green light and are happy enough to collect the rent, but they tell the user "We accept no responsibility"
Bird isn't technically a party to this case, but it's on the hook for costs and damages via an agreement it has with the City of Los Angeles to indemnify the City. So, ultimately Bird would have to spend money if the indemnification clause it has with the end user is found to be illegal.
I think the point everyone bashing on the dumbass guy is missing is that a contract between him and Bird is being used to more or less threaten him into dropping a case against the city, which is indemnified against Bird-related accidents. He may have brought this on himself, but as precedent this is terrifying.
This is the current indemnification clause. It could've been different at the time plaintiff in this case used Bird.
"In exchange for Rider being allowed to use Services, Vehicles, and other equipment or related information provided by Operator, Rider agrees to fully release, indemnify, and hold harmless Operator, Technology Services Provider and all of its and their owners, managers, affiliates, employees, contractors, fleet management service providers, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) in which Rider utilizes Services, and every property owner or operator with whom Operator has contracted to operate Services and all of such parties’ owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the “Released Persons”) from liability for all “Claims” arising out of or in any way related to Rider’s use of the Services, Vehicles, App, or related equipment, including, but not limited to, those Claims based on Released Persons’ alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons’ gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims."
Sounds like a textbook case of contributory negligence on the part of the rider, with plenty supporting evidence.
It's a shame that he's paralyzed. But I guess that's how it works in the US - if you've lost basically everything, then you have no reason not to sue. You have nothing to lose and everything to gain.
The picture seems muddled, esp due to him being potentially being high, though that's not confirmed.
What is clear is that Bird has entered into questionable legal indemnifications . They are also choosing to go after a person with no financial ability. And they litter the city with scooters. This does point to some sort of a cozy deal with the city, and I suspect some corruption is involved in city hall.
With e-scooters the slightest bump in the sidewalk is a dangerous thing. Even when you're sober - I've witnessed some falls where people were lucky to get away with a small injury. Also heard of another case where someone was hospitalized and has brain injury. Should be regulated more.
It seems like some broader context is missing from the discussion here. Regardless of the details of this case, we should ask why people are riding on the sidewalk in the first place?
Might it have to do with the eye-watering amount of space LA has given over to storing and moving cars, trucks, and SUVs? The urban environment in LA is not safe for people if you don't happen to surround yourself with 2 tons of steel.
So while the City isn't "at fault" in this case, they absolutely laid the foundation for this accident and countless others when they chose to prioritize the convenience motorists over people.
Here in Mexico there is no forced arbitration nor indemnization clauses for the city but the bike/scooter leasers were required to provide _comprehensive_ insurance for all leasers (which would have reach the coverage limit in this case but at least would have paid for initial healthcare) and city liability would have played out similarly (same claims would have been brought) but it would have likely resulted in the city not having to pay out (regardless of lack of enforcement) and way less attorney expenses.
The root cause here is generally terrible infrastructure for anything besides cars. Accounting for the human factor (driving while intoxicated, medical emergencies while driving such as stroke or heart attacks, …), I understand why most people would rather ride on side walks, especially if it’s not in a downtown area with speeds above 30 mph.
If the United States would claw back their car culture and tendency to scale horizontally. Quality of life ruining or death causing accidents like this would fall significantly.
This article implies that riding scooters is dangerous. I would love to see some stats on that. Is it more dangerous than riding a bike?
I myself ride an electric unicycle. Overall I think that's far more dangerous than riding a scooter or a bike. I've taken a couple nasty spills. But it is way, way, way more fun than riding a scooter or a bike. Plus you have your hands free to carry bags or do some videography.
A judge should hold Bird's TOS granting them indemnification from end-users unconscionable. A city should not be allowed to cure its concerns about liability by letting a disinterested-to-hostile third party take over their legal affairs. A citizen should not want to live in a world like that.
Sounds like Peña is a victim of legal malpractice. Peña’s lawyer should have reviewed both his client’s agreement with Bird and the public-record city operating agreement with Bird and have known his client was, in effect, suing himself through various costly intermediaries before filing the suit.
I disagree: the forced arbitration+indemity makes Bird relevant, the city-Bird agreement similarly, and in addition, Bird's arguments in the case make it specific & relevant.
Were the defendant on his own scooter or bike, none of that would have come into play. (The city would still have the other arguments it is making, of course, but many of those seem substantially weaker.)
at some point, the legal system needs to start enforcing personal responsibility. He accepted the risk of riding a bird. Is the consequence terrible? absolutely. Life is filled with risk. Accept them or don't. His lawsuit needs to be thrown out.
Right. The plaintiff should not have been riding a motorized vehicle on a sideWALK, thereby increasing potential risk to himself and others for grievous bodily harm. He failed his duty of care to using the vehicle and infrastructure as it was designed.
If a rider while following all the rules was struck by a city owned vehicle, would this rider also be unable to sue the city because he indemnified Bird and Bird indemnified the city?
That would be borderline malicious and factually incorrect.
Bird is claiming he consumed a large amount of cognac the night before with no BAC test, and cannabis was found in his urine with no possibility of dating ingestion.
The article isn’t paywalled, you can literally just read this in there BTW.
"Mr. Pena was allegedly operating a Bird scooter illegally on a city-maintained sidewalk with a BAC [blood-alcohol level] over the legal limit, tested positive for marijuana and in violation of the California Vehicle Code."
His claim is the city is at fault because police officers had seen him breaking the rules (no helmet, riding where he shouldn't and hadn't cited him).
"He said he was never stopped or cited, even though police officers had seen him numerous times."
It looks like he hit a visible obstruction, was not wearing a helmet and was impaired. My question is - should taxpayers be on hook for the millions he is looking for?
I ask because I was part of an effort to get community gardens up, and "liability" concerns by cities over what seemed like farcical situations was a major impediment. Then the more I read about the lawsuits they face, the more I realized that you could fall asleep drunk at the wheel, run off the road, hit some garden thing and sue the city because whatever garden thing had a slight impact on the outcome of an accident that was your fault. There is some kind of crazy joint and severable liability which means if city is even like 5% at fault, if no one else can pay the $10M, they might have too?