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Comment by tempnow987 | Hacker News Reader

Just as a quick FYI the other side of the story is the the claim that he'd been drinking large amounts of cognac.

"Mr. Pena was allegedly operating a Bird scooter illegally on a city-maintained sidewalk with a BAC [blood-alcohol level] over the legal limit, tested positive for marijuana and in violation of the California Vehicle Code."

His claim is the city is at fault because police officers had seen him breaking the rules (no helmet, riding where he shouldn't and hadn't cited him).

"He said he was never stopped or cited, even though police officers had seen him numerous times."

It looks like he hit a visible obstruction, was not wearing a helmet and was impaired. My question is - should taxpayers be on hook for the millions he is looking for?

I ask because I was part of an effort to get community gardens up, and "liability" concerns by cities over what seemed like farcical situations was a major impediment. Then the more I read about the lawsuits they face, the more I realized that you could fall asleep drunk at the wheel, run off the road, hit some garden thing and sue the city because whatever garden thing had a slight impact on the outcome of an accident that was your fault. There is some kind of crazy joint and severable liability which means if city is even like 5% at fault, if no one else can pay the $10M, they might have too?

View on HN

Wait, he's suing the city because he thinks his crash is city's fault for lack of maintenance, despite it literally being illegal to ride a scooter there, and, on top of that, being too drunk to drive?

Imagine a drunk driver suing the city after crashing into a tree growing on a median, for failing to clear the median to make it safer to drive there. It would be a amusing story in the nation's every single morning radio show.

I get that the guy is now paralyzed, but he has no case, all he's trying to do is to socialize his wrong choices onto LA taxpayers.

Slight correction, it's not known whether he was drunk at the time or not. He drank the night before. The city and Bird claim he was still drunk, he claims he wasn't. The article states

> As for whether Peña was legally drunk or high at the time of the crash, that is unclear. A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered. Avina told me that two toxicologists agreed that while cannabis may have shown up in Peña’s urine, there was no way to tell when it was ingested.

He'd drunk 750ml of cognac. Cedars noted he was under influence and smelled of marijuana. I think he'd stopped at a weed shop at 11AM or so on day of accident.

He was going downhill on a sidewalk covered by trash. It's actually not totally clear the sidewalk issue was cause of accident. He hit a tree parallel to the uplift, the city wonders how that was possible, if he hit the uplift and pitched forward it would be weird to hit a tree parallel to the uplift. There were other issues on the hill (trash etc).

There had been no service records to fix sidewalk in 10 year search by city.

Smoking weed impairs you. He smelled of weed and stopped at a cannabis store. Even ignoring all this, he accelerated down this hill, never applied the brakes. I'm just pointing out some other factors that may have caused his accident other than the city being idiots.

> He'd drunk 750ml of cognac. Cedars noted he was under influence and smelled of marijuana. I think he'd stopped at a weed shop at 11AM or so on day of accident.

Seriously? If true, then it would have taken him 30(!) hours to metabolize all that alochol[1]. Depending on how the timeline is (eg. drinks at 10pm, interview at 12pm the next day), it seems very plausible that he's over the legal limit.

750ml * 40% ABV = 300ml of alcohol. The human body can metabolize 10ml of alochol per hour, so that works out to 30 hours to metabolize it all. Even if it was 15 hours since he drank, his ABV would still be way over the limit[2]

[1] https://en.wikipedia.org/wiki/Unit_of_alcohol

[2] https://en.wikipedia.org/wiki/Blood_alcohol_content

Being drunk obviously makes take bad decisions, but doesn’t make your spine crush any more, nor does wearing helmet would make any difference.

Accidents like that happen all the time, regardless of mode of transport.

I'd risk hypothesizing that "accidents like that" happen quite a bit more to people who are drunk. This is, after all, why we have laws prohibiting "driving while intoxicated" and not, say, "driving while fabulous".

Well, driving distracted probably kills more…

I really don’t know how law works, but drunk drive prevention should be separate issue from attributing malice. Do we really incarcerate people who get t-boned while hungover?

> He'd drunk 750ml of cognac. Cedars noted he was under influence and smelled of marijuana

Not arguing, but where are you getting that info. None of that was mentioned in the linked article.

> I think he'd stopped at a weed shop at 11AM or so on day of accident.

That doesn't really mean much. Going to a weed store doesn't mean you are intoxicated and it could explain why he smelled like weed.

I agree with you that he's at fault, all I was saying was that I've yet to see anything that proves he was intoxicated.

Weirdly, there's no mention here of the fact that Bird littered the city with scooters that it is illegal to ride. Reminds me of the principle of "attractive nuisance" with respect to property. If someone uses something of yours in the way it is intended to be used, and they get hurt doing it, you cannot escape fault just because it was illegal for them to be using it at the time.

(you also cannot escape fault just by adding signs saying not to do the thing)

I think they are legal to ride, on the street though, not on the sidewalk.

Seriously? So if a drunk guy takes my lawn mower and starts mowing my lawn, and runs over his own foot, I can be sued for his hospital bills? That is insane.

If someone gets cut in your no trespassing sign, you can be sued.

I mean, yes, but that would be rather an extreme case. Most of these cases fall well short of drunk lawnmowering.

You can be sued if someone traipsed onto your property and drowned in your pool if you did not have a fence around it. You can be sued if someone trips over a root in your driveway even though it is a trespass. Why is it different for city property? Also, sidewalks are constantly used by pedestrians, bicyclists, and, even illegally, “scooterists”. Seems like if this was a dangerous root that the city was aware of and did not resolve or at least put up barriers, a strong case could be made that they knowingly allowed dangerous conditions.

For sure, the question is should it be this way? I mean, someone trespassing on your property trips on a root and sues you. That (in CA at least) does result in potential liability. Should it be this way?

The article is written from the point of view that Pena is a victim of a great injustice. It's not clear that is the case, though he may get millions from LA.

And heads up, when the city fights things like planting trees (which I'm a big fan of) this is why.

I think for the reality of this case it has to do with the law as it existed at the time of the accident.

As for dangerous conditions (at least by common, reasonable expectations) being allowed on private property, that is something to be quibbled over in state legislatures. For me, the question is whether it is reasonable to expect someone to be injured and a dangerous public sidewalk which is used by people meets that expectation. If the city zones or builds a strip of concrete so people can use it for transportation, it should be maintained properly for that purpose.

Or we can say one should exercise reasonable care, and recognize that with 11,000 miles of sidewalk some bumps are not out of the ordinary.

Because this is why someone tells you that for legal reasons sidewalks can't exist. Because someone may sue you.

We used to walk through the woods, filled with roots. Now a largely flat surface is so hazardous with a small uplift that it deserves massive litigation?

Could we offer a sidewalk walking pass to folks who signed a waiver? Anyone unable to walk on a sidewalk safely is cocooned at home or in a car?

I agree. The problem is when laws leave things up to being "reasonable" we end up with arguments like in this case where they claim the city failed to take reasonable care of the sidewalk, or that the rider failed to exercise reasonable care, etc. So we leave it mostly up to a few jury members, who's opinions and views can vary wildly from case to case.

> We used to walk through the woods, filled with roots. Now a largely flat surface is so hazardous with a small uplift that it deserves massive litigation?

Big difference is that one expects to encounter roots in the woods. Don’t think that people expect to trip on roots in a sidewalk. My guess is that a root that caused a scooter to flip is more than a small uplift, but I am, of course, not privy to the details of the case.

"I think for the reality of this case it has to do with the law as it existed at the time of the accident."

I agree, that's true. However, for us on here, it can be beneficial to discuss the merits and potential changes of the law. It makes for interesting conversation about the law and how it could be better. After all, if we're strictly limited to the case there's no point in any of this discussion since we aren't the ones involved in it or deciding it.

You mention "dangerous" several times. We would need to define that. I'm sure there's some case law on that somewhere. My guess is it's highly debated and variable based on the circumstances of the case and opinions of the judge/jury. Especially when it comes to where the line is drawn on acceptable level of danger. This would also need to investigate contributory negligence. For example, the sidewalk may have been safe for the legal uses of the sidewalk but dangerous for the illegal use of scooters.

You also mentioned zoning. This is great! Most city codes require specific upkeep and allow for some variance. For example, some localities allow for a half inch difference in height of two adjacent pavings. I didn't see any pictures or measurements in the article, nor mention of the city's sidewalk code. But this is a highly pertinent area to investigate.

> This would also need to investigate contributory negligence. For example, the sidewalk may have been safe for the legal uses of the sidewalk but dangerous for the illegal use of scooters.

One could argue that it is not about legal use, but the expectations of use. Is it reasonable to expect people to ride scooters and bicycles on sidewalks regardless of legality? In this case, the rider could sue the city and the city could then sue the manufacturer of the scooter for making a dangerous product and causing the city harm.

However, Did the city approve use of and leasing of scooters? If so, why did they do this knowing that they may not be able to maintain the sidewalks and roads to a level that is safe for these types of vehicles? Personally, I do not allow my children to ride scooters because the wheels are too small in diameter to handle basic potholes, concrete heaving, roots etc.

"Is it reasonable to expect people to ride scooters and bicycles on sidewalks regardless of legality?"

Can I tresspass at your house and practice diving for a basketball on your concrete driveway? Would you gladly pay my medical bills and pain and suffering?

If this is the way the world works, we have a serious problem. At some point people need to exercise reasonable care over themselves and not expect to be babied. One could also argue that the rider should have a reasonable expectation that bumps exist on sidewalks (even if bumps over a certain size aren't legal - the same argument you're making).

The tree in question:

An Indian laurel fig tree, is considered a major invasive species in Hawaii, Florida, Bermuda, Central America, and South America. F. microcarpa is widely used as a street and ornamental tree in areas of coastal California that are free of regular frost. Its strong roots can lift sidewalks and pavements, and many California cities no longer recommend planting them. In Southern California, a population of the symbiotic fig wasp is now established, which allows the ornamental trees to produce fertile fruit. Seeds are spread by fruit-eating birds, and F. microcarpa can now spread without direct human help. Naturalized populations have been found in Los Angeles, Orange, Riverside, San Diego, and Ventura counties, including on buildings, bridges, and other structures, and as an epiphyte on other trees, especially palm trees.

https://en.wikipedia.org/wiki/Ficus_microcarpa

"Wait, he's suing the city because he thinks his crash is city's fault for lack of maintenance, despite it literally being illegal to ride a scooter there, and, on top of that, being too drunk to drive?"

I assume he suing because he has nothing to lose but a lot to gain. The lawyers likely took it on gamble (contingency). He has a chance of settling since the risk and cost of litigation is huge. If he loses, there's no way he's paying any counterclaims for legal fees. So it's sort of like, why not? (Not that I think it's right)

You guys all missed the point of the article.

> But here’s where the story takes a head-spinning twist:

> When Peña downloaded the Bird app and agreed to its terms in August 2018, he unwittingly indemnified Bird against any lawsuits. Bird now claims that Peña owes the company $322,171, the amount it has spent so far defending Los Angeles against the lawsuit.

> Even more abominable, Bird argues that if the lawsuit goes to trial and Peña is awarded damages, it is Peña who must pay the damages … to himself.

I feel like this is not a particularly unreasonable outcome. Riding a scooter has certain inherent risks. I feel really terrible for this guy, but I also am not convinced that he should get a big payday from bird because he happened to be using one of their scooters when he had his crash. Nor the city. Unless these roots were egregiously uplifted and the city had been informed of that fact.

"Whether the roots were uplifted and the city had been informed" and "was Mr. Peña irresponsibly impaired" are arguments about the merits of the case. The point of the article is that Bird agreed to indemnify the city (compensate the loss incurred to the other party), and Bird claims that by agreeing to the ToS, users agree to indemnify Bird. I am not a lawyer, but it seems untenable that the buck stops with the user in all circumstances.

Yeah this is an interesting outcome of the various contracts that were agreed to. I think the issue here is probably Bird's indemnification of the city for all suits related to the use of their scooters. The city should only have requested indemnification in the event the scooter was defective in some way, and Bird should not have agreed to indemnify the city so broadly. Likewise, the breadth of the user's indemnification of Bird might be unconscionable. Although in this case I would argue that it is leading to what appears to be the correct outcome, it's problematic as a general rule.

> "Whether the roots were uplifted and the city had been informed" and "was Mr. Peña irresponsibly impaired" are arguments about the merits of the case.

They may also be arguments about the validity of the indemnity clause, in general, California law voids indemnity against acts known to be wrongful when done, and in many specific areas also against harms that are due to the “sole negligence“ of the indemnified party. Arguing that Peña had negligence (or worse) that contributed to the incident could thus, as well as being a merits argument, also be a an argument that the indemnity agreement is valid even if the city owes some damages (which is possible even if Peña is partially responsible.)

> The point of the article is that Bird agreed to indemnify the city (compensate the loss incurred to the other party), and Bird claims that by agreeing to the ToS, users agree to indemnify Bird. I am not a lawyer, but it seems untenable that the buck stops with the user in all circumstances.

There are generally public policy limits to indemnity clauses, and between organizations (e.g., the city and Bird) also often specific contractual limits (consumer agreements imposed by corporations generally will cover as much as the law allows.)

Those limits (on both agreements, since the absence of an obligation in Bird to defend the city would also mean, whether or not Bird is paying for the city’s defense, Peña doesn't have to pay Bird) will be addressed in the separate dispute between Bird and Pena over the indemnity clause in Peña’s contract with Bird.

On the flip side, we probably don't want Bird to profit off of illegal and dangerous rides. Holding them financially liable gives them an incentive to take steps to ensure the safety of their riders. Otherwise, we're in the classic "socialize the cost, privatize the profits" trap.

I'd personally prefer to leave the enforcement of the law up to police. Private companies should focus on serving customers, not being their nanny, or their teacher. I think most people are more or less aware of both the actual law and the tacit law. Education isn't the issue.

It's not being a nanny. It's not being an accomplice in a crime.

Yeah I mean this definition of accomplice very clearly doesn't follow or bear any resemblance to the legal definition. Likewise, rental car companies are not "accomplices" to your speeding even though they could put speed limiters in the vehicles they rent out. It would also plainly be suboptimal for rental car companies to nag everyone about following the speed limit. It's not their proper role and it's not like anyone is unaware of how speed limits work.

Rental companies do not collect travel data from their customers. Bird does and Bird can trivially identify customers riding illegally and/or dangerously. They know, or should know, that they're renting scooters to people who put the public at risk. You can't just "see no evil" your way out of that liability.

1. There's no evidence "the public" is bearing significant risk here, as opposed to scooter riders bearing individual risk.

2. You are incorrect in your claim that rental car companies do not track travel data. Many rental car companies do indeed have GPS trackers in some their cars. Despite this they bear no liability for the criminal behaviors of their customers, nor should they.

3. I am not sure if you mean your last statement to be normative or declarative. If the latter, you are wrong. Scooter rental companies in fact have no legal obligation to enforce traffic laws, thank goodness.

There is a really big discussion in the legal world right now about whether the indemnification clause in the scooter agreements is binding on consumers.

There are strong arguments made both ways. It's probably going to come down to the CA Supreme Court ruling on this.

> big discussion in the legal world

I guess this is only big because there are lots of cases that rest on this? Is that because injury rates on scooters are rather high and there are lots of injury claims?

"injury rates on scooters are rather high"

Anecdotally, a relative of mine was a doctor (before the time of electric scooters) and believed they were quite dangerous from the number of injuries they saw from them.

That's how the legal system works. If you file a claim and it caused another party legal costs, the other party can counter sue to cover those costs. Otherwise, you end up with tons of legal costs because someone hurt themself doing things they shouldn't have been doing.

"Even more abominable, Bird argues that if the lawsuit goes to trial and Peña is awarded damages, it is Peña who must pay the damages … to himself."

True, most business/user agreements seem to circumvent the spirit of various laws. Honestly, civil law avoids protections of many rights (no right to counsel, lower bar for verdict, ex parte determinations, etc), and the public seems to have an appetite for increasing those actions depending on one's political bent (red flag gun confiscation or TX abortion law).

It would be nice to see more protections under civil law, and restrictions on which rights can be signed away.

Edit: it appears that people are disagreeing. Care to add to the discussion?

I think you are the one who missed the point.

Do you honestly think that someone riding drunk and high and on the sidewalk (count them, three violations of the law at once) should be insured by Bird if they fuck up and have an accident? Come on, now.

The point is that Bird is using an arbitration agreement between them and an end user to not have to pony up according to the terms of their indemnification agreement with the city. This has _0_ to do with whether the gentleman brought it on himself.

> to not have to pony up according to the terms of their indemnification agreement with the city

I'm trying to wrap my head around this. The city wants money from Bird to pay for defending the gentleman's lawsuit against the city. Bird wants money from the gentleman since the lawsuit has to do with his scooter rental. The gentleman wants out of his rental agreement so he isn't being billed for the lawsuit he brought against the city?

Even outside of being drunk and/or high and/or over the device weight limit and/or wearing a prohibited backpack and/or operating the device where it is not allowed, it sounds like he wants for everyone else in the city to compensate him for his misfortune? If he didn't get the sandwich shop job could he sue the city over that?

As I understand it, the problem is the defense strategy, not the particular case at hand. They’ve essentially composed an argument that makes it impossible for bird, or the city, to ever be at fault, irrespective of circumstance.

That in this case they shouldn’t be at fault is not the issue; if the case was more blatantly the opposite (the user was clearly not at any fault), bird would still be making the same argument

> They’ve essentially composed an argument that makes it impossible for bird, or the city, to ever be at fault, irrespective of circumstance.

That's not true; California law has limits on indemnity agreements, most notably that they don't apply to wilfull misconduct (and, in some domains, also not to harms due to the sole negligence of the indemnified party, but it's not clear to me that any of those apply here.)

So there are clearly circumstances to which the chain indemnity here would not apply, if either the city or Bird had willful wrongdoing. The specific circumstances Peña alleges in this case don't meet that description, though.

> The point is that Bird is using an arbitration agreement between them and an end user to not have to pony up according to the terms of their indemnification agreement with the city.

No, they aren't; they are ponying up and coming after Peña to pay them back. That's kind of how indemnity agreements, in general, work.

The point is that Peña is suing the city and, if the various indemnity agreements all hold up, also paying for the city’s defense against his lawsuit and paying any damages that the city is found liable for in that suit. Which means that, if the indemnity agreement holds up, the net result will be Peña paying all the legal bills and court costs and receiving nothing, irrespective of the outcome of the main lawsuit.

> My question is - should taxpayers be on hook for the millions he is looking for?

One of the reasons people in this situation sue for millions of dollars is because it can take millions of dollars to cover their medical expenses for the rest of their life. Maybe the whole system would work better if the taxpayers covered this medical care upfront rather than this circuitous route of only paying for the medical care after a lawsuit. The current system seems to be working for no one.

The part of the system that is not working is the part where people feel they can get excessively drunk without sufficient consequences to incentivize them to not get excessively drunk.

Edit: apparently, it is not conclusively proven the person in this incident was drunk.

Whether he was drunk or not is irrelevant to the root of the problem. Having a life altering accident like this in the United States cost hundreds of thousands if not millions of dollars. That puts people in a situation in which their only hope is to sue someone. It doesn't matter who is actually at fault. Fault isn't the motivating factor. The motivating factor is that people need money to pay for their care and a lawsuit is the most realistic way to get that money.

In any country, someone would have to pay for that very expensive care.

Even somewhere with 'free' government healthcare, it's still the taxpayers who pay.

But they'd pay a lot, lot less in a more efficient system that wasn't ruthlessly optimized in about 20 ways for max profit and nothing else.

Do you have some data on that? My assumption is that removing costly litigation could save money, but I haven't seen any case studies on it.

Sure. The US pays far more than other first-world countries for health care and gets much worse health outcomes out of it. This is very well documented.

https://www.commonwealthfund.org/publications/fund-reports/2...

https://healthsystemsfacts.org/

https://www.forbes.com/sites/niallmccarthy/2019/08/08/how-us...

I'm aware of that stuff from the general healthcare standpoint. I'm asking about from healthcare expenses from these sorts of lawsuits. I'm wondering if just having costs covered would prevent the suits from happening or if people would still go after pain/suffering, lost wages, etc. It seems I didn't understand that you were just talking about the healthcare part.

I'm not clear on the distinction you are trying to make with this comment. I said the taxpayers should pay in my first comment. I'm not pretending this care would be free.

I will agree that making individuals responsible for excessive healthcare costs would be inefficient, but I think the current system with out of pocket maximums should be able to handle this.

What the current system needs to be tweaked to do is provide more subsidies do everyone has insurance (and a mandate for everyone to buy it, in lieu of additional taxes for single payer).

This is also gets baked into the high cost of auto insurance, which is mandated by the government.

Why should I be responsible for his medical care?

I think the idea would rather be that you would pay 5 cents a year towards his medical care, rather than have to pay all of it.

Oh good, so if everyone pays 5 cents a year we can all get millions of dollars of medical care. I’m not good at math, but makes perfect sense to me!

gee, the comment I responded to said "Why should I be responsible for his medical care?" in the context of a lawsuit where the 'his' under discussion got injured.

Then I said "I think the idea would rather be that you would pay 5 cents a year towards his medical care, rather than have to pay all of it." meaning that while the settlement for the lawsuit might be millions of dollars it will in fact not end up impoverishing the parent poster.

But for some reason you seem to think that it was about some other situation than the one under discussion here? I hope this summary has clarified the chain of very short messages for you, so that you no longer need labor under this evident misapprehension.

Morally: Because he's a human being.

Financially: It's a lot more efficient for society to cover all health care that's proven to be cost-effective regardless of who needs it or why. Putting gates on who is allowed to receive benefits costs more than it saves.

I tried to make it easy to read between the lines of my comment. I wasn't talking about his medical care. I was talking about everyone's medical care. And regarding that, there is a quote that has turned into somewhat of a meme that goes "I don't know how to explain to you that you should care about other people." Either you care about people in this situation or not. If you don't care, nothing I'm going to say will convince you to care.

Even people who generally care can reach a point where they don't want to, or simply can't. Stuff like the distractions of their own problems can prevent them from seeing larger societal solutions.

The tax payers are already on the hook for it if he is awarded damages from the city.

And the tax payers will pay for it if he runs out of money to pay too and it becomes emergency care and eventually a bad medical debt.

You shouldn't be personally, but collectively as a society we should try to look out for each other as a general moral rule, instead of a "me first" pure capitalistic mindset.

Same reason that we try to help the homeless, the less fortunate, etc.

Why should I be responsible for your education?

This article is about a adult man who was on drunk, on drugs, and driving an electric vehicle on a public sidewalk. How is this comparable to public education?

I wonder what the breakdown of costs are after SS disability and Medicare.

I do agree that costs at a case level could be lower without litigation, but I wonder what the overall cost would come out to. Basically, someone's paying for the care, but the question is how does, or what, shuffling of which bucket it comes out of will be beneficial?

> My question is - should taxpayers be on hook for the millions he is looking for?

If you're asking from a moral perspective - absolutely not. I don't know what the law says though, as that's the only thing that matters.

I've personally had a fall on my head while snowboarding and I'm glad I was wearing a helmet, as all I got was the wind knocked out of me. I can't imagine I'd ride my bike or a scooter in traffic without one.

Liability exists under the law in these cases in California. This came up in the Cabral case.

"On February 27, 2004, around 9:00 p.m., Decedent (Cabral) was driving an F-150 pickup truck (pickup) eastbound in the number three lane (of four lanes) on Interstate 10 (I-10) in San Bernardino County. Juan Perez testified that he was driving a big rig behind Decedent for some distance. He estimated Decedent's speed to be around "70, 80," miles per hour. Perez opined that Decedent appeared to be intoxicated or falling asleep because his pickup was swerving left and right within the number three lane. Perez saw the pickup suddenly turn right, cutting in front of another big rig truck in the number four lane, as if attempting to exit the freeway. The pickup crossed the number four lane and the paved shoulder of the freeway and then hit the back of Ralphs's big rig, which was stopped in the dirt area approximately 16 feet from the number four lane. Perez did not see brake lights activated on the pickup, nor was there any indication that Decedent tried to reduce speed or avoid hitting the big rig."

Testimony was that he either fell sleep or was suffering from a medical conditions (350lbs). He was speeding, weaving all over the place, then crossed over the lane next to his and then into dirt at side of road and then traveled a pretty long distance and then hit a grocery truck that was stopped 16 feet away from side of road, so basically another two lanes over.

And yes, Ralphs had to pay damages, even though their truck was damaged etc.

Important to note that tort law apportions responsibility (aka liability) for damages amongst all parties to the tort, so Ralphs would have been on the hook for at least some of the damages since their employee was the proximate cause of the accident (i.e., their driver's actions most directly led to the accident), even though the decedent was impaired or asleep.

Correct, that was the outcome, even though the decedent crashed INTO the Ralphs truck (so lay person might think decedent would owe Ralphs if anything), instead Ralphs was ordered to pay decedent.

This is where the law diverges from what people imagine.

So what was the law that Ralph's broke? Was the rig not allowed to be parked there? There wasn't a lot of detail in the comment.

The rig was illegally parked in an area along the freeway designated for “emergency parking only“.

Ah, ok.

The decedent's estate was also ordered to pay Ralph's. It's just the $4,725 in damages that Ralph's was awarded on their claim for damage to the truck was substantially less than the wrongful death award even after the latter was reduced to 10% of the damages the jury found because of Cabral’s 90% fault.

> Important to note that tort law apportions responsibility (aka liability) for damages amongst all parties to the tort

This is not consistently the case, but happens to be in pure comparative fault jurisdictions like California.

This was reversed in the appeals court, then upheld by the Supreme Court. It demonstrates how out of sync with reality the justice system is.

"And yes, Ralphs had to pay damages, even though their truck was damaged etc."

Contributory negligence and the clean hands doctrine doesn't exist in California?

I'm not going to sugarcoat it... this seems insane and makes me glad I don't live there (I get that it's a low risk for getting sued, but still, the logic required to get to this judicial opinion makes me nervous about what else could happen).

> Contributory negligence and the clean hands doctrine doesn't exist in California?

Contributory negligence is the rule in 5 jurisdictions out of the 50 states plus D.C., and, yes, California isn't one of the 5. It's on the opposite end, one of the 13 pure comparative fault jurisdictions. The other 33 US jurisdictions are modified comparative fault, with either a 50% or 51% cutoff for the proportional responsibility beyond which a plaintiff is barred from recovery from other parties responsible for damages.

Wow, that sucks.

Really, I find the pure comparative fault approach (wherein everyone is generally responsible for the harms created by their negligence) the most sensible, though I understand why the modified comparative fault approach appeals to some people. Contributory negligence seems to me to be an insane rule.

Modified comparative fault seems to make the most sense to me (it was actually the one I was thinking about when I said contributory negligence, refering to the action and not the rule).

The only real issue I have with the pure method is that theoretically a lower bar to bring a suit might encourage more to be brought and can lead to some perverse outcomes like the Ralph's case.

I mean, I don't have a lot of faith in the justice system based off of things I've personally seen in it. But even just taking the Ralph's example (which admittedly I should look into more), the impact of the truck being parked there seems like it should be essentially nonexistent. He was going to hit something, hard. The only real question was how much did the truck being parked there contribute to the outcome as opposed to hitting some other object. Without any real details, it seems that the outcome would have happened anyways, especially if he was simultaneously suffering from some medical condition.

> But even just taking the Ralph's example (which admittedly I should look into more), the impact of the truck being parked there seems like it should be essentially nonexistent.

Reserving any judgement on whether this is true or not, if it was, that's a problem with the jury determination of fault, not with comparative negligence, per se.

By avoiding sharp cutoffs, pure comparative negligence minimizes the risk of truly perverse results due to jury misassignment of fault. (Pure contributory negligence is the absolute worst for this, where finding something that had no contribution on the part of the person who suffered damage had even minimal contribution eliminates all recovery.)

> He was going to hit something, hard.

Maybe; I mean there are lots of ways a speeding vehicle with an intoxicated or otherwise medically incapacitated driver that has gone well onto the shoulder of an interstate can end up coming to a stop, and not all of them involve hitting something hard (though most of them aren't good, to be sure.)

I guess what I'm saying is that if someone can get half a million dollars from running off the road and hitting someone else who was at minimal fault (10%), then what's the point of any activity that exposes you to risk? Even with insurance, you end up paying a bunch of money. No point in starting a business if a driver can screw up after not obeying you and you still get sued.

"By avoiding sharp cutoffs, pure comparative negligence minimizes the risk of truly perverse results due to jury misassignment of fault"

It seems this is only true near the cutoff, and not near the margins. Just to continue on the possibility that this 10% determination was a jury mistake, that a half million dollar mistake. I'd hardly call that minimal. This case is far from the cutoffs of other states. This seems to also support my idea that the modified approach would reduce litigation, which I see as a benefit.

> 16 feet away from side of road, so basically another two lanes over.

Interstate highway lanes are 12 feet, so 16 feet from the last lane isn't another two lanes.

> And yes, Ralphs had to pay damages, even though their truck was damaged etc.

To be specific, the jury found the Ralph's driver 10% responsible for the accident for illegally parking in the emergency parking only lane, and Cabral 90% responsible due to...all the other stuff. Ralph's therefore had to pay 10% of the damages that were found for wrongful death of Cabral, Cabral's estate had to pay damages that Ralph’s was found to have suffered. The former amount was greater than the latter, so in net Ralph's ended up paying.

https://scholar.google.com/scholar_case?case=185706047112741...

Morality is sticky here.

I personally believe in universal health care and would say that his medical expenses SHOULD be covered without any sort of legal involvement. Hell, dude going around high and drunk probably needs to be in an addiction recovery program as well.

The reason he's suing is because he can't afford his medical bills and the legal bills end up compounding the problem. Were there no medical bills, the lawsuit he could bring up would pretty much be pain and suffering... maybe.

So, should taxpayers be on the hook? Partially in the sense that I think all medical problems should be publicly funded. Morally, removing discretion around who gets medical treatment and treating everyone ends up being a good. Will you waste money on people doing dumb things? Sure. However, you won't waste money having a giant system of people trying to weasel their way out of every payment (insurance). More people get their healthcare needs taken care of. An absolute net good.

The interesting thing is how we might adjust as a society with something like universal healthcare. In theory, it's possible the accident might not have happened at all if we decided as a society that e-scooters, alcohol, and weed, were all things that lead to expensive care, and we highly restricted them to help control health system costs.

Although it also depends on how that universal system works. For example, some systems require people with "preventable" conditions to pay an extra tax for their services.

> if we decided as a society that e-scooters, alcohol, and weed, were all things that lead to expensive care, and we highly restricted them to help control health system costs.

Perhaps e-scooters could be restricted. However, intoxicating substances are pretty much impossible to stop (We've tried). The problem is that most intoxicant substances can be made anywhere with a very low amount of equipment.

So, rather than focusing on restricting access, IMO, the better route is focusing on supporting behavior/lifestyle changes.

Though, if we are talking about fixing costs, then one thing that'd help tremendously would public access exercise facilities. It's a lot cheaper to operate a gym than a hospital.

"Though, if we are talking about fixing costs, then one thing that'd help tremendously would public access exercise facilities."

I kind of doubt a lack of facility is the blocker. There's nothing stopping people from doing body weight exercises in their home.

"However, intoxicating substances are pretty much impossible to stop"

True, we would only want to restrict it, not stop it. Basically, make the bar for the legal stuff higher enough to persuade people not to use it, but also set it lower than the illegal stuff. Of course it also needs to be accompanied with the lifestyle changes.

Just look at tobacco - legal, heavily taxed, providing minors is heavily punished, large warnings required, even requiring manufacturers to pay for commercials to smear their own product. This could be applied to just about anything.

> Just look at tobacco - legal, heavily taxed, providing minors is heavily punished, large warnings required, even requiring manufacturers to pay for commercials to smear their own product. This could be applied to just about anything.

I could definitely see getting more on board with that. Seems like such campaigns have been somewhat successful in multiple regions. The main thing I'm against is the criminalization of consumption, that's a fools errand.

More good education early on is a lot better than what I grew up with. The DARE program was such a joke.

"The DARE program was such a joke."

It was so long ago, but I though it was very detailed and informative. I think it's enough to keep curious kids uninterested in using. No amount of education will keep the hopeless person from using. And I mean hopeless as in they lack hope for their life and feel its over already, then they choose to use anyways knowing about the effects.

> Just as a quick FYI the other side of the story is the the claim that he'd been drinking large amounts of cognac.

You're not quoting the article accurately:

> lawyers for the city argued [...] that he had consumed a “large amount of cognac” the night before

> A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered.

It's very unlikely that his BAC was over the limit the day after (he was going to a job interview!), and regarding the cannabis in the urine, that stays detectable long after the effects are gone.

These allegations are tactics to discredit the plaintiff (note how vague they are, no hard numbers) and make him unsympathetic, and by looking at many of the comments here they're working.

Except the doctors noted evidence of the smell of weed, all their case notes and discharge notes indicate intoxication and bloodshot eyes. The plaintiff stopped AT a weed shop on the day of the accident.

This is not a criminal trial, a jury may weigh some probabilities here. 750ml of cognac drunk the night before, a stop at a weed shop, 11,000 miles of sidewalk, and the claim the city is at fault for this accident and the plaintiff is not.

>It's very unlikely that his BAC was over the limit the day after (he was going to a job interview!)

A sibling comment[1] alleges that he drank 750ml of cognac. If that's true it's reasonable to assume he was intoxicated, even if there's no blood test

[1] https://news.ycombinator.com/item?id=30909634

Hell no tax payers shouldn’t be responsible. He took a risk, now he must accept the consequences.

This is a reminder that at any moment of the day you can encounter a situation just like this. Take care of yourself. The world will kill you if you let it.

At the risk of sounding heartless in situations with liability, I try to think of the long term consequence of a ruling indemnifying this driver.

Even if he hadn't had alcohol or tested positive for marijuana, he shouldn't win this. Because if he did win, then it means living in a nanny state à la Singapore, police officers need to make sure that he doesn't break the rule, trees need to be cut because they're a danger to society and are too unpredictable (reminds me of the Guangzhou officials who cut 130,000 banyan trees). This is not a world I want to live in. I want to live in a world where you can decide to take risks but the consequences of those risks are yours alone. If he decided to ride a bird and didn't take any precaution or wear helmet, it's his fault.

If however, he did this and caused an incident, it would also be his fault and peope impacted by the accident would be in their rights to sue him, since he is the one who took the risks.

> It looks like he ... was impaired.

That was alleged by Bird and the city, but there appears to be no proof of it. Specifically it says

> lawyers for the city argued ... that he had consumed a “large amount of cognac” the night before

Sounds like he was drinking the night before the accident, and the city tossed out an evidence-free allegation that he might still have been drunk the following day on his way to a job interview with no evidence at all, in the hopes that some people wouldn't pay close attention to the details...

Also, people don't usually go to job interviews drunk.

>Also, people don't usually go to job interviews drunk.

Having worked for years in the service industry, you'd be surprised.

And many people don't even realize that if they drink a large amount (10+ drinks) the night before that they are probably still drunk the next day. People just assume they slept it off.

> There is some kind of crazy joint and severable liability which means if city is even like 5% at fault, if no one else can pay the $10M, they might have too?

Joint and several liability isn't crazy when you realize that by the time a civil case gets to court it is often the case that some party must get screwed.

Suppose X and Y are both at fault in something that caused serious injury to Z. Z was not at all at fault. Further suppose that X is 90% at fault and Y is 10% at fault, and that a just damages award to Z would be $1 million.

The most just outcome would be that X pays $900000 to Z and Y pays $100000 to Z.

But that only actually works if X can pay $900000 and Y can pay $100000. Suppose either X or Y is cannot pay, or maybe can eventually pay put it is going to take a lot of time and effort to squeeze the money out of them.

Then either Z gets screwed by not getting their full damages paid or by having to spend a lot of time and effort collecting them, or whichever one of X and Y that has money gets screwed by having to pay more than their fair share upfront.

With joint and several liability the idea is that if we have to screw someone, which we do in this situation, it is better to screw someone who was actually at fault than to screw someone who was not at fault.

A party that ends up getting screwed by having to pay more than their fair share can then sue the other at fault parties for the overpayment. So if say it would be hard for Z to collect $900000 from X they can get it from Y, and then it is Y's problem to figure out how to squeeze $900000 from X.

> A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered. Avina told me that two toxicologists agreed that while cannabis may have shown up in Peña’s urine, there was no way to tell when it was ingested. (Cannabis can be detected long after its effect fades.)

Sounds like its he-said-she-said about the blood alcohol test.

And metabolite tests for cannabis ingestion are useless for determining intoxication.

So it sounds like there's no proof he was drunk and/or high at all.

At the same time as a 50 year old GenXer I see all these "kids" (which is probably under-30 these days for me) riding around on various e-contraptions without helmets and I mutter various old-person shit to myself about how they're going to crack their head open doing that.

The problem is though that the legal machinations here that the scooter company wants to apply are horrible and indemnify them against anything, even if the person was otherwise being careful and the scooter just falls apart due to poor design and maintenance.

There's no common sense to be found anywhere here as far as I can see.

The "was impaired" part seems to be in dispute:

"A judge who ruled against the city when it asked that the lawsuit be tossed wrote in her order that no forensically defensible blood alcohol test had been administered."

"The city lost a motion to get the lawsuit thrown out and turned to Bird for help with the case. In the failed motion, lawyers for the city argued the city did not know about the broken pavement or fig tree, that Peña accelerated down the hill (which Peña denies), that he had consumed a “large amount of cognac” the night before, that he was over the scooter weight limit by 15 pounds and was wearing a backpack."

The night before.... for the cognac side. Not that I agree with the victim, but "drinking large amounts of cognac" needs context of "when".

“ My question is - should taxpayers be on hook for the millions he is looking for?”

Obviously not, but with how crazy society has gotten, maybe these Idiocracy-lite situations will become more common and they will have to be priced-in; meaning that eventually nothing can be done because everything will be too expensive due to liability and labor shortages.

> eventually nothing can be done because everything will be too expensive due to liability and labor shortages.

I have to wonder if you wrote this in 1987, because that's kinda already the reality we're living in in 2022...

Unfortunate that this is the top comment at the moment - there is zero evidence he was impaired at all. Others have quoted the exact lines stating so in the article.

Bird just playing a defamation game, gross.

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