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Court of Appeal:
C.A. Restores Suit Alleging Electric Scooters Are Nuisance
In 2-1 Decision, Judgment of Dismissal Is Reversed in Personal Injury Action Against Company That Owns, Monitors, Transportation Devices; Judgment Is Affirmed, Based on Immunity, in Lawsuit Against City
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reinstated an action against the company that has, under a permit from the City of Los Angeles, placed hundreds of electric motorized scooters on the streets and sidewalks, holding, in a 2-1 opinion, that a woman who tripped over one of the parked conveyances and was injured has stated causes of action under negligence and nuisance theories.
Although it was determined that the plaintiff could maintain a private action for a public nuisance, the majority’s opinion leaves open the prospect of an action to enjoin operation of the ubiquitous scooters. Whether the utility of them outweighs the annoyance to pedestrians and motorists and prospect of injuries is a matter of growing controversy, with Parisians on Sunday determining in a referendum, by an overwhelming vote, that operation of the 15,000 electric rental scooters in the city must end.
Justice Anne H. Egerton authored the majority opinion for Div. Three. Presiding Justice Lee Edmon signed it; Justice Luis Lavin dissented.
Egerton’s opinion reverses a judgment dismissing of Sara Hacala’s action against Bird Rides, Inc., which owns, electronically tracks, and controls the scooters, and also reinstates actions by her husband and daughter which are reliant upon the validity of her claims. However, it leaves intact Los Angeles Superior Court Judge Mark H. Epstein’s order capsizing the plaintiffs’ causes of action against the City of Los Angeles based on immunity in performing discretionary acts.
Public Nuisance
Addressing the nuisance theory, Egerton wrote:
“[B]ecause Bird’s alleged conduct constitutes a public nuisance, and because that alleged conduct physically injured Hacala, we conclude Hacala is authorized to assert a private action for public nuisance against the company.”
She went on to say:
“Fairly construing the complaint, it alleges Bird’s conduct has created a public nuisance by obstructing public sidewalks and creating tripping hazards that the general public must avoid. While that alleged inconvenience is plainly sufficient to establish a public nuisance…, Hacala allegedly suffered a different kind of injury—she tripped on a Bird scooter and was physically injured. We conclude the allegations are sufficient to state a private action for public nuisance to redress this personal injury.”
Civil Code §1714
Egerton also declared that a cause of action was that validly stated against Bird based on its alleged breach of its “general duty” of care under Civil Code §1714(a), which provides, in part:
“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.”
The jurist declared:
“[H]aving deployed its dock-less scooters onto public streets, Bird’s general duty encompasses an obligation, among other things, to use ordinary care to locate and move a Bird scooter when the scooter poses an unreasonable risk of danger to others. Moreover, because it was foreseeable that someone could be injured if Bird breached this duty, and because Bird agreed to take measures to prevent such injuries when it obtained the permit from the City, we cannot find that public policy clearly supports an exception to the fundamental principle that a company like Bird is liable for injuries proximately caused by its want of ordinary care in the management of its property.”
Dismissing Bird’s contention that a third party, not it, was responsible for the scooter being left partially concealed behind a trash can, presenting a danger to pedestrians, Egerton said:
“[T]the risk that third parties would negligently leave Bird scooters in hazardous locations is plainly among the perils that would make it negligent for Bird to deploy its dock-less scooters onto public streets without having reasonable measures in place to ensure its customers and agents park them safely or to retrieve abandoned scooters when they pose a danger to the public.”
Lavin’s Dissent
Lavin confined the discussion in his dissent to §1714. He protested:
“While Bird has a general duty of care in the management of its property, I don’t agree with the majority that this duty requires Bird to retrieve scooters that had been improperly parked ‘for only a few seconds’ or even a few minutes. From a commonsense perspective, the majority’s view has little to recommend it. 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. 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.”
Egerton responded that Lavin “erects a…strawman” in pointing to the prospect that the majority’s holding would be applied where a scooter had been improperly parked for an inappreciable amount of time, remarking:
“That hyperbolic framing is not at all what plaintiffs allege, what we hold, or what section 1714 demands. Rather, the duty we recognize here is simply to use ordinary care in monitoring and removing a Bird scooter when it poses an unreasonable risk of harm to others.”
City’s Liability
Egerton found the city to be immune from liability under Government Code §821 which applies where there was “an injury caused by” a public employee’s “failure to enforce an enactment”—the enactment being the wording of the city’s permit—and under §820.4 which provides:
“A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law.”
Hacala argued in her opening brief that Epstein “should have allowed Plaintiff to amend to state a theory of dangerous condition of public property under Gov. Code § 835.”
That provision says that, in general, “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition…a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
Parking Regulation
The opening brief, drafted by attorney Rowena J. Dizon, notes that the second amended complaint—to which Epstein sustained demurrers without leave to amend—“alleged that the Permit described the designated parking spaces…and permits the inference that the regulations were made known only to Bird.” The brief sets forth:
“Plaintiff can amend the complaint to allege that the City failed to place markings on its sidewalks so that the public can directly see where scooters should be parked….The absent markings for scooter parking on the sidewalk would satisfy the physical defect requirement for the public property.”
Egerton responded:
“[T]he City’s sidewalks are not defective or dangerous pieces of public property simply because third parties may improperly use them in a way that could cause harm to others. As the operative complaint’s allegations admit, the dangerous condition at issue is not a physical defect of the property, but the public’s alleged lack of knowledge about ‘where to park [Bird] scooters.’ The absence of sidewalk markings designating scooter parking zones did nothing to increase or contribute to the risk of harm posed by this alleged lack of knowledge….”
The case is Hacala v. Bird Rides, 2023 S.O.S. 1428.
In December 2022, the U.S. National Transportation Safety Board released a report saying that between 2017-21, at least 119 persons died while riding electric scooters. Proponents of the scooters argue that they, unlike automobiles, to not emit carbons.
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