By: Eric Ganci
We’ve seen this: a messy sidewalk, littered by electronic scooters. Whether they are scooter versions from Bird, Lyft, Uber, or some other company, the scooter craze swept through San Diego and many other Cities…to help in part with traffic and ease of commuting…but to also bring the ability for scooter riders to leave scooters laying around sidewalks, streets, yards, etc.
With this scooter-litter (as I’ll call it), can a scooter company be liable for a scooter left out, to allow someone to trip and fall over it? April 10, 2023, a California Court of Appeal decided Hacala v. Bird Rides, Inc., cited as of April 18, 2023 as 2023 WL 2851729, to give insight and law on this topic.
In 2017, Bird had begun in Los Angeles (where this case takes place) their scooter rental system where people could rent the scooter using a “dock-less” system of starting and ending the rental (to then dump the scooter around town possibly).
November 23, 2019, Plaintiff Hacala was “walking on a City sidewalk just after twilight. The sidewalk was crowded with holiday shoppers and Hacala did not see the back wheel of a Bird scooter sticking out from behind a trash can. She tripped on the scooter, fell, and sustained serious physical injuries.”
Plaintiff filed suit against Bird and the City, claiming negligence and other related claims (like dangerous condition on a public property). But “[t]he trial court sustained defendants’ demurrer [for both Bird and the City] without leave to amend, concluding neither Bird nor the City owed plaintiffs a duty of care.”
I’ll give the general rule and holding here before diving deeper: this Court upheld the ruling in favor of the City. But reversed the ruling in favor of Bird by saying: “Bird may be held liable for breaching its general duty under [California Civil Code] section 1714 to use ‘ordinary care or skill in the management of [its] property.’”
Per California Civil Code § 1714(a): “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself….”
What were Bird’s arguments here? They included this: “Bird contends this rule of general application does not apply to plaintiffs’ negligence claims because, in Bird’s telling, Hacala did not suffer her alleged injuries as a result of the company’s conduct. Instead, Bird maintains Hacala’s injuries were caused by the conduct of an unidentified third party who, without any urging from Bird, left a Bird scooter behind a trash can in violation of the City’s parking standards.”
How Plaintiff pleaded her complaint was important.
When Plaintiff filed her complaint, she alleged “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.”
“Bird ‘knew that unless [its] scooter[s] had ‘always-on front and back lights’ … the scooter[s] would not be visible to pedestrians at night.’ But again, despite this knowledge, Bird allegedly ‘failed to install ‘always-on front and back lights that are visible from a distance of at least 300 feet’ on its scooters … as required by its Permit.’”
She further alleged “Bird’s ‘management of [its] property’…contributed to the risk….”
Holding in favor of Plaintiff, the Court here says: “Because the foregoing allegations ground plaintiffs’ negligence claims upon Bird’s conduct (and not solely the conduct of a third party), this is not a case that requires a special relationship to find Bird had a duty to prevent injuries allegedly occasioned by Bird’s ‘want of ordinary care or skill in the management of [its] property’—namely, the Bird scooter that injured Hacala.”
However, the Court is also careful to not step on the toes of the Trier of Fact, as the Court says “[w]e emphasize that our holding today is limited to a legal determination that Bird owed plaintiffs the general duty codified in section 1714 to use ordinary care in the management of its property.”
The Court continues, saying: “[w]e consider plaintiffs’ breach allegations only to determine whether Bird’s general duty broadly encompasses the category of negligent conduct alleged, but we leave for the trier of fact to determine, based on the evidence, whether any specific conduct constitutes a breach of Bird’s duty to exercise ordinary care in the management of its property and whether that breach caused plaintiffs’ alleged injuries.”
So, the Court allows Plaintiff’s complaint to proceed against Bird. With one last quote from the Court: “Bird’s entire conduct (deploying dock-less scooters onto public streets) created the risk that those scooters could become hazards for pedestrians and others unless Bird took affirmative measures to prevent this harm.”