Scooter Class Action Unlikely to Succeed

by Bryan Cave Leighton Paisner

Nine named plaintiffs filed a putative class action in Los Angeles Superior Court on October 19, 2018, against two scooter ride share companies, Lime and Bird, and two scooter manufacturers, Segway and Xiaomi USA, complaining that the scooters are wreaking havoc in California’s public places and injuring pedestrians, scooter riders and property owners.  Daniellee Borgia, et al. v. Bird Rides, Inc., et al., LASC Case No. 18STCV01416.  Three plaintiffs claim they tripped over scooters strewn on the sidewalk and/or blocking entrances to shops, and suffered physical injuries.  Three plaintiffs claim they were injured by scooter riders crashing into them.  One plaintiff claims a scooter rider collided with his car and damaged it.  One plaintiff claims that scooters blocked her from parking in a handicap spot.  One plaintiff claims he was injured when his scooter’s accelerator locked up, causing him to lose control of the scooter and fall off.  Plaintiffs assert claims for strict products liability, negligence, negligence per se, gross negligence, breach of implied warranties of fitness for a particular purpose and merchantability, public nuisance, declaratory and injunctive relief, and aiding and abetting assault.  Plaintiffs seek to certify four separate sub-classes, two each against Bird and Lime, consisting of (1) California pedestrians who have been, will be and/or are endangered of being injured and/or damaged by scooters (the “Pedestrian Classes”), and (2) Californians injured while riding the scooters (the “Rider Classes”).  Plaintiffs seek, among other things, to enjoin Lime and Bird from deploying scooters in California, and compensatory and punitive damages.

Plaintiffs face an uphill battle with their case, for several reasons.  First, the crux of the action is about holding defendants responsible for scooter riders’ alleged failure to abide by the “rules of the road,” including riding on sidewalks, and third-party vandalism, such as knocking over parked scooters.  That could be a very tough sell in light of the popularity of the environmentally-friendly scooters.  Second, plaintiffs’ complaint suffers from a variety of pleading defects, some of which likely cannot be cured.  Third, even if plaintiffs can get past the pleading stage, proving their allegations, especially to justify the requested injunctive relief, will be difficult, and defendants have good defenses.  Finally, obtaining class certification will be extremely difficult.

The Rider Classes face perhaps the most difficulties.  Their user/rental agreements with Lime and Bird contain various provisions that protect the companies.  These include a waiver and release of all claims absolving the companies of any liability related to the riders’ use of the scooters, and clauses that disclaim any warranties and that acknowledge that the rider is assuming all risks associated with scooter activity.  The riders also waived any right to class claims, and agreed to arbitrate any claims.  These contract provisions should control the riders’ rights (or lack thereof) as against Lime and Bird, unless the court were to find the provisions unenforceable, which is unlikely given that similar provisions in contracts related to other activities, such as skiing, are enforceable.

As presently pleaded, both pedestrian and rider plaintiffs’ strict liability claims fail because the complaint does not allege facts demonstrating the existence of any manufacturing or design defect in any of the scooters involved in each of plaintiffs’ accidents.  The complaint states, in conclusory fashion, that the scooters contain “defective electronics, brakes, battery charge indicators, wheels and tires, internal power tubes and accelerators, and do not contain adequate instructions and/or warnings of hazards and dangers.”  However, none of these purported defects is alleged to have played a role in any of the plaintiffs’ accidents, with the exception of the one rider plaintiff who alleges a single incident where his scooter’s accelerator malfunctioned.  The pedestrian plaintiffs who allegedly tripped over scooters lying on the ground cannot maintain a strict liability claim – the fact that the scooters were lying on the ground does not render them defective.

The pedestrian plaintiffs’ negligence and gross negligence theories likely will fail because neither the scooter manufacturers nor the scooter ride share companies owe them a duty of care.  Any duty to the pedestrians is owed by the scooter riders.  Indeed, in their user contracts, the riders agreed to obey all traffic and other laws pertaining to the use of the scooter, and specifically agreed to park the scooter in a visible upright position using the kickstand, in a lawful parking spot, and not in a heavily trafficked area where the scooter is in danger of getting knocked down.  Moreover, the scooters lying on the ground likely were plainly visible, giving defendants an “open and obvious” defense to the pedestrian plaintiffs’ negligence claims.

The pedestrian plaintiffs’ warranty claims likely will fail, too, because there is no privity between them and any of the defendants.  The pedestrian plaintiffs did not rent the scooters that allegedly injured them.  In any event, plaintiffs don’t allege any facts showing a breach of these implied warranties. 

Plaintiffs’ negligence per se claim is based on alleged violations of various statutes pertaining to rider conduct while operating a scooter.  Plaintiffs allege, in conclusory fashion, that defendants violated and/or assisted violations of these statutes, but the complaint is devoid of any facts supporting this accusation.  In any event, it is unlikely the court will hold defendants responsible for rider traffic violations.

Plaintiffs’ public nuisance claim should not succeed because the use of motorized scooters is sanctioned by statute.  California Civil Code § 3482 provides that nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.  The California legislature enacted Vehicle Code § 21220 et. seq. with the stated goal of promoting “the use of alternative low-emission or no-emission transportation,” noting that “[t]his state has severe traffic congestion and air pollution problems, particularly in its cities, and finding ways to reduce these problems is of paramount importance.”  Cal. Veh. Code § 21220(a).  The legislature specifically found at § 21220(b) that “[m]otorized scooters that meet the definition of Section 407.5 produce no emissions and, therefore, do not contribute to increased air pollution or increase traffic congestion.”  Thus, the regulatory scheme set forth in § 21220 et seq. was enacted specifically to promote the use of the type of zero emission scooters offered by Bird and Lime in order to tackle two significant problems plaguing California cities, including Santa Monica: traffic congestion and carbon emissions.  The scooter share services are designed to help the state and cities to achieve these important goals.  Even after some early noise about scooter users riding helmetless, the legislature recently amended § 21235 to eliminate the helmet requirement for adults and clarify the definition of an electric scooter.  In so doing, the legislature made clear its approval of this new form of sustainable transportation.

Plaintiffs’ aiding and abetting assault claim is, in a word, nonsense.  The riders control the scooters while in use.  Hertz and Avis aren’t subject to aiding and abetting assault claims if one of their customers violates the traffic laws, or happens to hit a pedestrian or another car.

In light of the above difficulties, it is unlikely plaintiffs will obtain an injunction precluding Lime and Bird from deploying the scooters.  The relatively small number of incidents, even if defendants could be blamed for them, does not justify the overreaching injunction plaintiffs seek, particularly in light of the benefits derived from the scooters.

Finally, class treatment of the claims is not appropriate.  Here are just a few reasons why:

  • The named plaintiffs are not adequate class representatives. There is a conflict of interest between the rider classes and the pedestrian classes.  The pedestrian classes allegedly are being injured or endangered by scooter riders – that is, the rider classes.  To make matters worse, the riders agreed in their user contracts to defend and indemnify Lime and Bird against any and all claims arising from their use of the scooters, putting the riders directly adverse to the pedestrian classes.  That provision also creates a conflict between the rider class members.  In addition, the putative members of the rider classes are also members of the pedestrian classes because they not only ride scooters, they also are pedestrians.  Thus, the interests of the members of the pedestrian classes are in conflict.  Plaintiffs’ counsel in turn appears to have a conflict of interest and may not be able to represent both sets of classes, or the putative pedestrian classes as currently defined.
  • Plaintiffs cannot prove their claims with common proof. There is no common alleged defect in the scooters, no common cause or factual scenario of scooter accidents, and no common set of facts or issues pertaining to the alleged public nuisance caused by the scooters. Those circumstances will vary by specific geographic location; the location’s terrain, including the layout of buildings, sidewalks, streets, right of ways, etc.; pedestrian, scooter and car traffic; time of day; location, orientation and operation of the scooter(s); visibility; and so on.
  • Individualized issues pertaining to the putative class members predominate over any common issues, which would result in a series of mini-trials. For example, the circumstances of each putative class member’s accident or “situation” with the scooters are infinitely different.  Those events will have occurred at different times and places, involved different people, and under different facts.  Defendants are entitled to prove that any putative class member’s alleged injury is the fault of someone else, including the class member.  For instance, was the scooter lying on the ground open and obvious enough that the class member should not have tripped over it?  Was the scooter really in the way?  Who put it there?  Did someone other than the rider knock it over?  Was that on purpose or accidental?  All of these issues require individualized evidence to resolve.
  • There is no damages model applicable across the entire class, for any of the putative classes. For instance, each class includes individuals who have suffered no injury whatsoever.  And as to those who have suffered injury, those injuries vary.  This much is demonstrated by the variety of injuries allegedly suffered by the nine named plaintiffs.
  • The classes are not ascertainable or manageable. For example, how does the court identify who is a proper member of the pedestrian classes?  As defined, it is not every Californian – only those allegedly injured or endangered, or will be injured or endangered, by the scooters.  Arguably, there is no reasonable method to identify those individuals, particularly those who may be injured or endangered in the future.

Despite the foregoing flaws, the action has received media attention, which may be disruptive to defendants.  And plaintiffs’ counsel will undoubtedly attempt to refine their theories into more viable claims as the litigation proceeds.  Plaintiffs’ firms will be watching what happens in this first case of its kind, as more such suits are likely to be filed.

[View source.]

Written by:

Bryan Cave Leighton Paisner

Bryan Cave Leighton Paisner on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.