5 ms·

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

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

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