12 ms·

Ride a Bird scooter. Have an accident. Pay a mighty price

70 points by lisper 5y ago

mediocregopher 5y ago
> 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. Our legal system is such a fucking joke.
- api 5y ago
  - lacrosse_tannin 5y ago
    bird flips you!
- danuker 5y ago
  If you owned the vehicle outright, would the manufacturer be liable for an accident you had?
  - torstenvl 5y ago
    Under similar circumstances? Probably, yes. They're the ones who ostensibly indemnified the city, something they had no obligation to do.
  - datalopers 5y ago
    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.
    - danuker 5y ago
      Oh! I had failed to read that Byrd would have to pay for the city's defense, and that Byrd's agreement prohibits suing the city.
  - newsclues 5y ago
    Are manufacturers responsible for peoples use of firearms?
- unsupp0rted 5y ago
  Wouldn't / shouldn't a judge throw out a sweeping clause like this if challenged in court?
  - torstenvl 5y ago
    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. https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion) https://www.law.cornell.edu/wex/adhesion_contract_(contract_...
- dymk 5y ago
  If the guy was driving drunk on a scooter, he absolutely should be on the hook for damages.
  - neon_electro 5y ago
    That needs to be proven with evidence. There isn't any proof.
- atourgates 5y ago
  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.
  - sidewndr46 5y ago
    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.
    - antifa 5y ago
      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.
  - bell-cot 5y ago
    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...
getcrunk 5y ago
"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."
- alienasa 5y ago
  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.
  - bckygldstn 5y ago
    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?
  - getcrunk 5y ago
    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
tempnow987 5y ago
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?
- deleted 5y ago
  [deleted]
- cbg0 5y ago
  > 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.
  - tempnow987 5y ago
    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.
nickphx 5y ago
draw_down 5y ago
kahrl 5y ago
Headline should read: Operate a vehicle while under the influence of drugs and alcohol. Have an accident. Face the consequences of your own actions.
- finiteseries 5y ago
  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.
eric_b 5y ago
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?
- quantified 5y ago
  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.
  - mbauman 5y ago
    I'm not convinced Bird is irrelevant, specifically because the city made a rather convoluted agreement with Bird to enable its use in the city. Use that is _known_ to be largely done outside of the terms of use and/or city law.
- cguess 5y ago
  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. I hope he wins.
  - djanogo 5y ago
    I hope city/Bird wins, him being irresponsible without helmet and riding illegally on sidewalk is not tax payers fault. Too many people want Bird/City to loose just because they hate corps.
droidno9 5y ago
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.
- djrogers 5y ago
  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...
  - droidno9 5y ago
    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.
  - Brian_K_White 5y ago
    Because they chose to indemnify the city. 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"
- prepend 5y ago
  > The key to this whole thing is for a judge or jury to toss out the latter indemnification as unconscionable. Yes, a judge could do that. But I am nowhere near a lawyer but this doesn’t seem unconscionable. Scooters are purely optional and no one is forced to accept terms they don’t like. If these terms were on public transit then I think that would be a better chance. But some random company making you agree to hold the harmless seems pretty normal.
weird-eye-issue 5y ago
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.
- flutas 5y ago
  > 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] [0]: https://www.latimes.com/local/lanow/la-me-ln-lawsuit-broken-sidewalks-20150331-story.html https://www.latimes.com/local/lanow/la-me-ln-lawsuit-broken-...
  - fluoridation 5y ago
    The city forbids riding on the sidewalk, though. Even if it's not enforced, you should not get to sue after you decided to do it anyway.
  - weird-eye-issue 5y ago
    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?
droidno9 5y ago
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."
erulabs 5y ago
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.
- droidno9 5y ago
  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.
  - matwood 5y ago
    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.
    - nullc 5y ago
      bird indemnified the city here-- they voluntarily adopted the cities legal liability, in some complex negotiation between their expert attorneys.
- dml2135 5y ago
  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.
abfan1127 5y ago
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.
- saint_abroad 5y ago
  > Life is filled with risk. Accept them or don't. Life is also filled with negligence. Companies (and people) have a duty of care to minimise risk or damage to others.
  - anonAndOn 5y ago
    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.
fabianhjr 5y ago
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.
kuyan 5y ago
> 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.
- neura 5y ago
  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.
lm28469 5y ago
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
hnov 5y ago
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.
insickness 5y ago
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.
giantg2 5y ago
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.
xyst 5y ago
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.
ashenba 5y ago
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.
jacobriis 5y ago
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?
frogpelt 5y ago
Click bait. The first phrase could be left out of the title It could have happened on his own scooter or bicycle too.
- deathanatos 5y ago
  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.)
vjust 5y ago
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.
dragonwriter 5y ago
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.
- spacemanmatt 5y ago
  Are you an attorney?
spacemanmatt 5y ago
The way I look at it: 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.
giantg2 5y ago
Just curious, since the article lacks some details. Does anyone have a link to the picture of this sidewalk?

70 points by lisper 5y ago

> 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. Our legal system is such a fucking joke.

api 5y ago
- lacrosse_tannin 5y ago
  bird flips you!
danuker 5y ago
If you owned the vehicle outright, would the manufacturer be liable for an accident you had?
- torstenvl 5y ago
  Under similar circumstances? Probably, yes. They're the ones who ostensibly indemnified the city, something they had no obligation to do.
- datalopers 5y ago
  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.
  - danuker 5y ago
    Oh! I had failed to read that Byrd would have to pay for the city's defense, and that Byrd's agreement prohibits suing the city.
- newsclues 5y ago
  Are manufacturers responsible for peoples use of firearms?
unsupp0rted 5y ago
Wouldn't / shouldn't a judge throw out a sweeping clause like this if challenged in court?
- torstenvl 5y ago
  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. https://www.law.cornell.edu/wex/adhesion_contract_(contract_of_adhesion) https://www.law.cornell.edu/wex/adhesion_contract_(contract_...
dymk 5y ago
If the guy was driving drunk on a scooter, he absolutely should be on the hook for damages.
- neon_electro 5y ago
  That needs to be proven with evidence. There isn't any proof.
atourgates 5y ago
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.
- sidewndr46 5y ago
  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.
  - antifa 5y ago
    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.
- bell-cot 5y ago
  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...

getcrunk 5y ago

"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."

alienasa 5y ago
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.
- bckygldstn 5y ago
  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?
- getcrunk 5y ago
  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

tempnow987 5y ago

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?

deleted 5y ago
[deleted]
cbg0 5y ago
> 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.
- tempnow987 5y ago
  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.

nickphx 5y ago

draw_down 5y ago

kahrl 5y ago

Headline should read: Operate a vehicle while under the influence of drugs and alcohol. Have an accident. Face the consequences of your own actions.

finiteseries 5y ago
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.

eric_b 5y ago

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?

quantified 5y ago
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.
- mbauman 5y ago
  I'm not convinced Bird is irrelevant, specifically because the city made a rather convoluted agreement with Bird to enable its use in the city. Use that is _known_ to be largely done outside of the terms of use and/or city law.
cguess 5y ago
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. I hope he wins.
- djanogo 5y ago
  I hope city/Bird wins, him being irresponsible without helmet and riding illegally on sidewalk is not tax payers fault. Too many people want Bird/City to loose just because they hate corps.

droidno9 5y ago

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.

djrogers 5y ago
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...
- droidno9 5y ago
  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.
- Brian_K_White 5y ago
  Because they chose to indemnify the city. 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"
prepend 5y ago
> The key to this whole thing is for a judge or jury to toss out the latter indemnification as unconscionable. Yes, a judge could do that. But I am nowhere near a lawyer but this doesn’t seem unconscionable. Scooters are purely optional and no one is forced to accept terms they don’t like. If these terms were on public transit then I think that would be a better chance. But some random company making you agree to hold the harmless seems pretty normal.

weird-eye-issue 5y ago

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.

flutas 5y ago
> 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] [0]: https://www.latimes.com/local/lanow/la-me-ln-lawsuit-broken-sidewalks-20150331-story.html https://www.latimes.com/local/lanow/la-me-ln-lawsuit-broken-...
- fluoridation 5y ago
  The city forbids riding on the sidewalk, though. Even if it's not enforced, you should not get to sue after you decided to do it anyway.
- weird-eye-issue 5y ago
  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?

droidno9 5y ago

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."

erulabs 5y ago

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.

droidno9 5y ago
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.
- matwood 5y ago
  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.
  - nullc 5y ago
    bird indemnified the city here-- they voluntarily adopted the cities legal liability, in some complex negotiation between their expert attorneys.
dml2135 5y ago
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.

abfan1127 5y ago

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.

saint_abroad 5y ago
> Life is filled with risk. Accept them or don't. Life is also filled with negligence. Companies (and people) have a duty of care to minimise risk or damage to others.
- anonAndOn 5y ago
  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.

fabianhjr 5y ago

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.

kuyan 5y ago

> 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.

neura 5y ago
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.

lm28469 5y ago

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

hnov 5y ago

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.

insickness 5y ago

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.

giantg2 5y ago

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.

xyst 5y ago

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.

ashenba 5y ago

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.

jacobriis 5y ago

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?

frogpelt 5y ago

Click bait. The first phrase could be left out of the title It could have happened on his own scooter or bicycle too.

deathanatos 5y ago
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.)

vjust 5y ago

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.

dragonwriter 5y ago

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.

spacemanmatt 5y ago
Are you an attorney?

spacemanmatt 5y ago

The way I look at it: 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.

giantg2 5y ago

Just curious, since the article lacks some details. Does anyone have a link to the picture of this sidewalk?