Thursday, June 1, 2023 | Back issues
Courthouse News Service Courthouse News Service

Trip-and-fall suit against Bird scooters revived on appeal

The ruling could spell doom for the already beleaguered dockless electric scooter industry.

LOS ANGELES (CN) — In a decision that could have cataclysmic implications for dockless electric scooter rental distributors, a California appellate court panel reinstated a trip-and-fall lawsuit against Bird on Monday, finding that the microbility company can be held liable for an injury caused by a scooter left on the sidewalk.

"Bird’s general duty encompasses an obligation, among other things, to use ordinary care to locate and move a Bird scooter when the scooter poses an unreasonable risk of danger to others," Second Appellate District Justice Anne Egerton wrote for the majority. "We cannot find that public policy clearly supports an exception to the fundamental principle that a company like Bird is liable for injuries proximately caused by its want of ordinary care in the management of its property."

Justice Luis Lavin, dissented, writing the majority's opinion would spell doom for the entire industry.

"If dockless 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," Lavin wrote.

Bird was among the first tech companies to flood cities with thousands of cheaply made e-scooters, available to rent via a smartphone app for as little as a few dollars. Founded in 2017, environmentalists hailed the company for revolutionizing micromobility, offering non-drivers a faster way to travel without burning gasoline. It was also considered a darling of the tech world, becoming the fastest startup to every reach the much sought after $1 billion "unicorn" valuation.

But many people found the scooters an eyesore. The fact that they were dockless meant users could, and indeed did, park them anywhere — in the middle of the sidewalk, on someone's front lawn, in a driveway or even in the street. And although the companies paid people money to charge the scooters and place them in designated locations, scooters remain left strewn about in public rights of way.

Meanwhile, Bird has fallen on hard times. Numerous other companies have flooded the dockless e-scooter marketplace, while increasingly onerous regulations have pushed Bird out of some cities, including the startup capital of the world, San Francisco. Once valued at $2.85 billion, Bird is has been reduced to a penny stock and is now reportedly struggling to stay afloat.

Back in 2019, when Bird was still being praised as a brilliant startup, then-70-year-old Sara Hacala and her husband visited their daughter in Los Angeles. The three strolled along Abbott Kinney, a popular tourist destination and shopping district in Venice Beach, one late afternoon. According to the complaint that they would later file: "Ms. Hacala went to throw away a candy wrapper in a trash can near the corner and then tripped on the back tire of a Bird scooter that was sticking out from behind the trash can. The scooter was within 25 feet of a single pedestrian ramp. The scooter did not have any lights on. Ms. Hacala never saw the scooter before she tripped on it, fell and sustained serious injuries."

According to her attorney Cathrine Lerer, Hacala suffered multiple fractures in her wrist that required surgery to insert a metal plate into her wrist. She now suffers from chronic pain.

"For the rest of her golden years, she’s going to be dealing with this pain," said Lerer.

Hacala sued Bird and the city of Los Angeles in LA County Superior Court claiming negligence and public nuisance, saying they had "created tripping hazards when they deployed dockless electric motorized scooters in the city of Los Angeles which they knew would likely be parked and/or placed on the sidewalk in a manner that obstructed the pedestrian right-of-way.

"It was foreseeable that members of the public using the sidewalk, including elderly persons such as Ms. Hacala, would trip and fall over an improperly parked and non-visible scooter and suffer physical injuries," Hacala says in her complaint.

In 2021, Judge Mark Epstein dismissed the suit on demurrer, finding the complaint was aimed at public policy — something he was reluctant to wade into.

“Stripped to its essentials, the real complaint is that Bird’s business model makes it easy for a user to rent the scooter and just leave it anywhere, even a place where a reasonably careful person could trip over it and get hurt," Epstein wrote. "It is the business model itself, more than it is any particular action or inaction by Bird, that truly caused the injury."

Epstein added: "The Court is not prepared to state that the dock-less system of scooter rentals is inherently dangerous such that if a scooter is stopped at a dangerous location, Bird is essentially or virtually strictly liable. That is much more of a regulatory or legislative determination than a judicial one, and there is nothing that is so far beyond the pale that the Court believes it is appropriate to jump in and make the determination."

The appeals court panel agreed with Epstein that the city of LA shouldn't be held liable for Hacala's injury. But two of the three judges think Bird should be.

"Bird’s entire conduct (deploying dockless scooters onto public streets) created the risk that those scooters could become hazards for pedestrians and others unless Bird took affirmative measures to prevent this harm," Egerton wrote. She did note the ruling did not mean that "every incident of a pedestrian tripping over a Bird scooter can result in negligence liability," but that a jury could be trusted to weigh the evidence in such a claim.

Lerer, Hacala's lawyer, praised the ruling.

"From day one, scooter companies have refused to take any responsibility for injuries to pedestrians," Lerer said. "And I’m so grateful the appellate court got it right and is holding scooter companies responsible."

She called dockless e-scooters "an eyesore and a tripping hazard," adding: "They're a menace."

A spokesperson for Bird did not respond to an email requesting a comment on the rolling.

In his dissent, Justice Lavin wrote Bird shouldn't have the responsibility "to retrieve scooters that had been improperly parked 'for only a few seconds' or even a few minutes."

He added: "From a commonsense perspective, the majority’s view has little to recommend it."

The suit now moves back to the lower court and, potentially, a jury.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.