Bird Can Be Sued Over Poorly Parked E-Scooters

Bird Can Be Sued Over Poorly Parked E-Scooters

Written By: Y. Peter Kang and edited by Gemma Horowitz

Re-posted from Law360 (April 10, 2023, 9:10 PM EDT) — A California state appeals panel on Monday reinstated a woman’s suit seeking to hold Bird Rides Inc. liable for injuries she suffered after she tripped over a poorly parked e-scooter, saying Bird has a duty to relocate the e-scooters if they pose a danger to the public.

In a 2-1 precedential ruling, the three-judge Second Appellate District panel found that Sara Hacala can proceed with her suit accusing Bird of causing her to suffer serious injuries in 2019 when she tripped over one of the company’s e-scooters, which had been parked next to and was partially obscured by a trash can in Los Angeles.

The suit alleges that Bird’s e-scooters, which do not require a docking station and are typically left by users on sidewalks, created tripping hazards and that the company failed to properly educate its users to park the e-scooters safely. Hacala also sued the city of Los Angeles for failing to enforce the public safety requirements of the permit it granted to Bird in 2017, according to Monday’s published opinion.

The panel shot down Bird’s argument that it can’t be held liable for the alleged negligence of the unknown third party who parked the e-scooter next to the trash can, saying such a characterization puts the entirety of blame on the third party, whereas Hacala alleges that Bird’s mismanagement of its e-scooters contributed to her injuries.

“The complaint alleges Bird knew that without proper instruction its customers and agents were likely to leave scooters on sidewalks in a manner that posed a tripping hazard to pedestrians,” Justice Anne H. Egerton wrote for the majority. “Despite this knowledge and Bird’s ability to restrict access to its scooters through the Bird app, Bird entrusted its scooters to these individuals, but allegedly ‘failed to communicate with . . . and educate [them] to park scooters only in areas designated by the city.'”

The appeals court said the alleged negligence of third parties is irrelevant at this stage of the case because Hacala alleges that Bird’s own actions — deploying dockless scooters on public streets without ensuring they don’t become unreasonable hazards to pedestrians — constituted a breach of its duty of care regarding the management of its property.

In addition, the panel found that Bird can be sued under California’s public nuisance law because she properly alleged that the company is violating the terms of its permit with the city of Los Angeles, which requires it to ensure that the scooters are not blocking pedestrian walkways and that it “remedy inoperable or improperly parked vehicles within two hours” between “the hours of 7 a.m. and 10 p.m. daily,” among other requirements.

“The allegation is sufficient to establish the existence of a public nuisance,” it said. “[Hacala] alleges Bird’s conduct has created a public nuisance by obstructing public sidewalks and creating tripping hazards that the general public must avoid.”

In a dissent, Justice Luis A. Lavin said he would dismiss the claims against Bird because it would improperly require the company “to retrieve scooters that had been improperly parked” for just minutes.

“Essentially, the majority suggests that plaintiffs be able to recover for injuries on a strict liability basis rather than to be limited to claims arising from negligence,” he said. “If dock-less 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.”

An attorney for Bird, Stacy Alexejun, told Law360 that they disagreed with the opinion regarding the claims against Bird and are considering a further appeal to the California Supreme Court.

“As recognized by Justice Lavin and the trial court in siding with Bird, the majority’s expansion of legal duty goes too far and would hold owners of vehicles — rented or otherwise — strictly liable for injuries caused by a third party’s misplacement of a vehicle,” she said via email. “Bird is evaluating an appeal to the California Supreme Court.”

An attorney for Hacala, Catherine Lerer, told Law360 on Monday that the “tide is turning” against e-scooter companies, with the city of Paris recently banning their use.

“The appellate court made the right call in ruling that e-scooter companies owe a duty to use ordinary care in monitoring and removing scooters that pose an unreasonable risk of harm to others,” she said via email. “This is a huge win for pedestrians.”

The trial court had dismissed Hacala’s claims against Los Angeles. The city was not a party to the appeal.

Justices Anne H. Egerton, Lee Smalley Edmon and Luis A. Lavin sat on the panel for the Second District.

Hacala is represented by Catherine Lerer, Dean Ogrin, Rowena J. Dizon of McGee Lerer & Associates.

Bird is represented by Stacy A. Alexejun and Evan Thomsen of Quarles & Brady.

The case is Sara Hacala et al. v. Bird Rides Inc. et al., case number B316374, in the Court of Appeal of the State of California, Second Appellate District.

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