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Comment by xyzzyz | Hacker News Reader

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.

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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.

"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)

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

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