3 ms·

"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 poin

by 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.

by rflrob 5y ago

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.