Court applies the brakes to scooter company’s arguments

Scooters are everywhere! Since roughly 2017, we've all seen them "parked," abandoned, knocked over, or otherwise blocking sidewalks and driveways throughout our City. Many of us - myself included - have used these scooters. They can provide a thrilling and convenient ride; that is, until you ride over a pothole or crack. Personal injury lawyers who have handled scooter cases can tell you that these mobility devices can cause serious injuries. We're talking fractured limbs, surgery with hardware, and other potentially life-changing injuries.

But what happens when a parked scooter injures a pedestrian who trips over it because it was blocking the sidewalk? This common scenario was the subject of a recent Court of Appeal case in Hacala v. Bird Rides, Inc. The Court, in reversing the trial court, ruled that Bird Rides owes the public a general duty of care not to create unreasonable risks of harm to pedestrians and others who navigate city sidewalks.

Some background is appropriate. Sara Hacala was walking with her daughter as it got dark on Nov. 23, 2019. The sidewalk was crowded with holiday shoppers. An improperly parked Bird scooter had its rear wheel protruding onto the sidewalk, obstructing the walkway. Ms. Hacala tripped and suffered serious injuries. She sued Bird for negligence, arguing that the scooter company failed to remove the culprit scooter. More broadly, she argued that Bird owes the public a general duty to use ordinary care to locate and remove a scooter that poses an unreasonable risk of harm to others.

The trial court disagreed. In granting Bird's demurrer, the trial court ruled that absent a special relationship with the plaintiff, the scooter company was not liable to injured parties like Ms. Hacala who were injured by an intervening, third-party scooter rider's conduct. It was the scooter rider who improperly parked the Bird scooter in a hazardous location that caused Ms. Hacala's injuries, not the scooter company.

The Court of Appeal reversed. It held that Ms. Hacala's complaint alleged that Bird failed to manage its property and thus contributed to the risk of harm that resulted in the plaintiff's injuries. The complaint pointed to the City of Los Angeles's permit granted to Bird, which among other things, required Bird to: Ensure their vehicles are not parked in a way that impedes the regular flow of traffic; Remedy inoperable or improperly parked vehicles within two hours; Maintain a 24 hour staff response to assist with emergency scooter removals; and maintain insurance coverage. Since the complaint contained numerous allegations that Bird's conduct caused the plaintiff's injuries, the Court found that Bird had a duty to prevent injuries occasioned by its want of ordinary care in the management of its property.

The Court also rejected Bird's arguments seeking to exempt it from the duty of ordinary care under the public policy considerations set forth in Rowland v. Christian (1968) 69 Cal.2d. 108. When creating exceptions to the general duty of care, courts look at the foreseeability of harm to the plaintiff; the extent of the burdens to the defendant; and the overall policy of preventing future harm. Id. Bird argued that public policy dictates this exemption because imposing liability would be too burdensome for scooter companies that provide thousands of mobility scooters across the vast expanse of the Los Angeles metropolitan area.

The Court disagreed. An exemption to the general duty is not justified because Bird's business permit reflects a policy judgment by local authorities in the City of Los Angeles that dockless scooter companies must take responsibility for the management of their property. Specifically, the requirement that Bird maintain liability insurance anticipates that the cost of negligent conduct should be borne by Bird. Therefore, Bird has a general duty of care to members of the public, including the plaintiff in this case. Whether Bird breached this duty of care is a question of fact for the jury.

The case also includes a discussion whether the City of Los Angeles is liable for failing to enforce the provisions of Bird's permit, and whether the plaintiff in this case could maintain a private nuisance action against Bird for failing to manage its scooters throughout the City. The key takeaway is that Bird and other scooter companies owe the public a general duty to use ordinary care.

Hacala v. Bird Rides, Inc. is a major win for consumers and members of the public injured by scooter companies' negligence. Scooter companies cannot feign ignorance as more and more consumers and pedestrians continue to be injured by these devices. I have seen first-hand in my practice how a simple activity like jogging on a path in the evening or walking one's dog in the neighborhood resulted in painful injuries because of an improperly parked scooter. Moving forward, Hacala will be an important authority for plaintiffs and their lawyers seeking to hold scooter companies accountable for their negligence in scooter injury cases in California.