7 ms·

You guys all missed the point of the article. > But here’s where the story takes a head-spinning twist: > When Peña downloaded the Bird app and agreed to its

by Mizza 5y ago

You guys all missed the point of the article. > 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.

asdfasgasdgasdg 5y ago
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.
- rflrob 5y ago
  "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.
  - asdfasgasdgasdg 5y ago
    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.
  - dragonwriter 5y ago
    > "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.
- treis 5y ago
  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.
  - asdfasgasdgasdg 5y ago
    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.
    - treis 5y ago
      It's not being a nanny. It's not being an accomplice in a crime.
      - asdfasgasdgasdg 5y ago
        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.
        treis 5y ago
        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.
        5y ago
giantg2 5y ago
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?
gamblor956 5y ago
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.
- londons_explore 5y ago
  > big discussion in the legal world 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?
  - giantg2 5y ago
    "injury rates on scooters are rather high" 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.
Bud 5y ago
I think you are the one who missed the point. 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.
- hnov 5y ago
  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.
  - adolph 5y ago
    > 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?
    - setr 5y ago
      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
      - dragonwriter 5y ago

by Mizza 5y ago

asdfasgasdgasdg 5y ago

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.

rflrob 5y ago
"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.
- asdfasgasdgasdg 5y ago
  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.
- dragonwriter 5y ago
  > "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.
treis 5y ago
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.
- asdfasgasdgasdg 5y ago
  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.
  - treis 5y ago
    It's not being a nanny. It's not being an accomplice in a crime.
    - asdfasgasdgasdg 5y ago
      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.
      - treis 5y ago
        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.
        5y ago

giantg2 5y ago

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?

gamblor956 5y ago

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.

londons_explore 5y ago
> big discussion in the legal world 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?
- giantg2 5y ago
  "injury rates on scooters are rather high" 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.

Bud 5y ago

I think you are the one who missed the point. 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.

hnov 5y ago
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.
- adolph 5y ago
  > 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?
  - setr 5y ago
    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
    - dragonwriter 5y ago