November, 2018 | Dolan Law Firm

Time for scooter companies to be responsible

The following is part one of an open letter to Scoot, Skip, and other providers of electric scooters detailing serious safety concerns I have pertaining to their scooter rental businesses. Part two will be published next week.

I wrote this letter because, as a trial lawyer representing seriously injured people, I see preventable tragedy ahead. The current circumstances remind me of 2012-2013, when Uber and Lyft first hit the streets and I was writing about the inevitable injury and death I could foresee from their business models, as well as the resulting insurance crisis in which victims would be unable to receive compensation for medical expenses, lost wages, and loss of loved ones.

Tragically, shortly after I wrote about those risks, Sophia Liu was killed by an Uber driver on New Year Eve of 2013 and Uber denied any responsibility for her death. After Sophia’s death, I was retained by her family and pursued both a lawsuit on their behalf and, in conjunction with the Consumer Attorneys of California, a change in the law to require Uber and Lyft to provide one million dollars insurance coverage for people injured by their services.

The time has come for these “new scooter transportation services” to act like responsible businesses and ensure their users are not left with life-altering injuries and hundreds of thousands in hospital bills.

To Whom It May Concern:

I am writing you to put you on notice of safety risks created by your products/services, your non-compliance with the California Vehicle Code, your unconscionable contract clauses which harm your consumers, and the lack of insurance coverage which will leave your users financially and, in many instances, physically crippled for life if injured in a collision. I appeal to your consciences and implore you to take immediate action to correct these very real threats to public safety before someone is severely injured or killed. I can assure you that such a day is unfortunately, and inevitably, fast approaching. You now have the opportunity to act as a socially responsible business by adapting your model to prevent injury and protect those who will ultimately be harmed by the use of your product.

Based on my review the following is my educated legal opinion about the dangers and legal violations which your products/services create.

Your devices appear to fall under regulations promulgated under the California Vehicle Code, meeting the definition of an “electronically motorized board (EMB)” pursuant to California Vehicle Code Section 313.5.

Your products/services are defective due to their lack of providing required head protection (helmets). California Vehicle Code Section 313.5 requires that a user of an EMB use a helmet if they are operating on a roadway, sidewalk or bike path. You know your products will be operated on these facilities, yet you provide no helmets! That is analogous to a rental car company renting vehicles without seatbelts. Any casual observer can see that the majority of users of your products are helmetless. As such, you should provide a helmet or obtain proof of the use of a helmet before you rent your product. Anything less is socially irresponsible and uncaring for your customers. The fact that it may be difficult to create a mechanism to reliably provide each user with a helmet does not circumvent the requirement that a helmet be used.

Your devices violate minimum visibility requirements. Along with head protection, there is probably no bigger safety factor than visibility. California Vehicle Code Section 21293 requires that EMB’s meet certain minimum visibility standards: 1) a headlight that provides a minimum of 100 feet of visibility; 2) a red tail light visible from a minimum of 500 feet; and 3) white or yellow reflectors on the sides visible from no less than 200 feet. To comply with Section 21293, the lighting must be visible to others who are using the travel ways and may be affected by the movement of the scooters. A review of your scooters on the roadways demonstrates that most, if not all, vehicles violate these visibility requirements. While Scoot vehicles have headlights mounted on their handlebars, and therefore visible to others in a normal and customary manner, their luminosity is questionable and may vary depending on the charge in the battery. Skip vehicles have lights positioned on the floorboard, less than 10 inches off the ground. These lights may provide some visibility for the user to see roadway defects, but do not alert other roadway users to the scooter’s presence. Moreover, neither service provides white or yellow reflectors on the sides of the devices and their rear tail lamps are weak, small, and too low to be meaningfully visible. In short, these devices appear to be defective and dangerous products manufactured and operated in violation of the California Vehicle Code.

Consequences of Vehicular Homicide

Jane in San Rafael asks: “I am an avid bicyclist and supporter of the Marin and San Francisco Bike Coalitions. It is frightening to ride on city streets. Last week there was a DUI-related fatality in Marin and another bike death in Windsor. What does the law do to punish people that kill bicyclists? Maybe letting readers know of the penalties might help them think twice and prevent more of these deaths.”

Jane, as a supporter of the Marin, Oakland, and San Francisco Bike Coalitions who rides with his children, I am horrified to see the increase in injury and death occurring in the cycling community. I am intimately familiar with the case in Windsor: we have been retained to represent the family of the young woman who was killed by a large truck. The Marin case, involving the drunk driver, is very tragic: people ruining their own lives by drinking is a shame, and when they kill innocent people on top of that, it’s criminal.

According to the National Highway Traffic Safety Administration, 3602 people were killed in California motor vehicle collisions in 2017. The majority of fatal collisions involve more than one vehicle and other vehicle occupants are the most likely victims of fatal collisions, followed by pedestrians, motorcyclists, and bicyclists. Thirty-one percent of these involved at least one driver with a blood alcohol level above the legal limit and 20 percent involved a driver with at least twice the legal limit. California Vehicle Code 23152 makes it unlawful for a person who is under the influence of any alcoholic beverage or drug to drive a vehicle while intoxicated, which is presumed at a blood alcohol level of 0.08 percent or greater, by weight. Commercial drivers, and drivers carrying passengers in exchange for compensation (taxis, Uber, Lyft, etc.) are presumed to be intoxicated if they have a blood alcohol level of .04 percent or greater.

Accidental deaths caused by motor vehicles generally fall under the rubric of vehicular manslaughter. California Penal Code (CPC) Section 192(c) defines vehicular manslaughter as the unlawful killing of a human being while: (1) driving a vehicle in the commission of an unlawful act (not a felony); or (2) driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner. Vehicular manslaughter may be committed with or without gross negligence, defined as so slight a degree of care as to raise a presumption of a conscious indifference to the consequences. Causing death while perpetrating an accident insurance scheme, where the vehicular collision was knowingly caused for financial gain, may also be tried as either vehicular manslaughter or murder. If the driver is acting lawfully in a lawful manner, a resulting death is not considered a homicide.

According to CPC Section 193, the sentencing and punishment for vehicular manslaughter depends upon whether the offense is charged as a misdemeanor or felony. A misdemeanor vehicular manslaughter conviction is punishable by up to one year in county jail. A felony vehicular manslaughter conviction is punishable by up to six years in state prison. We recently handled a case on Highway 680 where a slow-moving construction crane, without its lights on and without warning or guides, entered the freeway from a staging area directly into 65 mile per hour traffic, causing death when another driver collided into the rear of the crane. In that case, the defendant crane driver plead no contest to vehicular manslaughter and was subject to a year of house arrest. The driver and the insurance company representing the business paid many millions to compensate the family for the loss of their husband and father.

Cases where the driver was intoxicated often command more severe penalties under CPC Section 191.5 defining “gross vehicular manslaughter while intoxicated.” Gross vehicular manslaughter while intoxicated, if committed without malice, is punishable by imprisonment in the state prison for up to four years; with malice, for up to 10 years. A person with one or more prior convictions of drunk or reckless driving who causes a fatality is subject to imprisonment in state prison for a term of 15 years to life. Gross vehicular manslaughter while intoxicated may be charged even if the driver’s blood alcohol level does not exceed the legal limit, as well as when an impaired driver is not the sole cause of death. In one case, a man with a blood alcohol level of .03 percent was traveling late at night on his way home from a concert, proceeded to fall asleep and rear-ended a car. After the initial accident, the occupants were able to get safely to the shoulder, but a truck driver, not paying attention, swerved to avoid collision with the car and killed the passenger of one of the vehicles. The impaired driver who caused the initial collision was charged with gross vehicular manslaughter while intoxicated.

Finally, if the driver’s conduct rises to a such level of wantonness as to support a finding of “implied malice,” it may be prosecuted as second degree murder. “Malice” is the mental state that distinguishes manslaughter, caused by the perpetrator’s criminal negligence, from murder, in which the perpetrator either intends to kill or acts deliberately with conscious disregard for human life despite knowledge that their conduct is dangerous. The California Supreme Court, in its seminal 1981 decision, People v. Watson, held that the statutory language crafted specifically for vehicular manslaughter does not preclude a charge of second degree murder where a perpetrator exhibited subjective appreciation of a high degree of risk to human life. In that case, the defendant had driven over 80 miles per hour in a 35 mile per hour zone with more than twice the legal blood alcohol level. When a driver willfully consumes alcohol to the point of intoxication, knowing that they will later operate a motor vehicle, they can be held to exhibit a conscious disregard for human life. The capability of the intoxicated driver to form malice in the act of reckless driving may later be evaluated with respect to a diminished capacity defense.

The vehicular homicide cases I have handled have involved people from all races and socioeconomic backgrounds. The law doesn’t discriminate between a rich guy driving a Porsche and a poor laborer driving a beat-up pickup truck. District Attorneys have little sympathy for drunks or unlawful drivers who cause harm or death. I hope that anyone reading this will refrain from driving even if they have had “only a couple of beers.” My heart and prayers go out to the families of the bicyclists who have been so senselessly killed.

Jury duty and disabilities

Following an article I wrote recently on jury selection, I was contacted by a Stephen W., a psychiatrist, who asked that I inform people who suffer from disabling conditions about their rights if called for jury selection. I was reluctant to write this article, as I do not want to provide people with excuses to try and get out of jury service. However, I have personally observed over the past 25 years that there are people with disabilities, both physical and mental/emotional, for whom jury service may be ill-advised or damaging.

Jury service is a civic duty. The right to a jury trial is one of the fundamental rights all Americans possess, ensconced within the Bill of Rights, the first ten amendments to the Constitution, and the Seventh Amendment. Interestingly enough, there is no right to vote contained in the Bill of Rights. Not until 1870, following the civil war, was the Fifteenth Amendment passed which stated that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State because of race, color, or previous condition of servitude [slavery].”

Jury service is a fantastic experience in participatory democracy. You and twelve ordinary citizens, after listening to the facts of a case, and the instructions on the law given by the judge, get together in a room and deliberate. Webster’s Dictionary defines “deliberate” as “to think about or discuss issues and decisions carefully.”

Jurors are identified by voter roles and DMV records and are chosen at random. The local jury commissioner issues subpoenas through the mail. California law provides that a juror may be summoned only once a year. Some trials are longer than others. For example, a criminal misdemeanors trial for shoplifting may take a day, whereas a murder trial may take several months. Likewise, a civil trial for a simple rear-end collision may be a day long, whereas a complicated wrongful death case or employment discrimination case may take weeks or months. The longest trial I have ever participated in was an employment case that lasted three and a half months.

There are penalties for any prospective trial juror who has been summoned for service and fails to attend as directed. Pursuant to California Civil Code Section 209, a judge may issue a warrant of attachment compelling a person who fails to respond to a juror summons to come before the judge. Following a hearing, the court may find a prospective juror in contempt of court, a crime punishable by fine, incarceration, or both.

Nevertheless, under Code of Civil Procedure Section 228, a prospective juror may be disqualified at the judge’s discretion if they have an incapacity which makes them unable to perform the duties of a juror. The California Rules of Court Rule 2.1008(d) states reasons for which a judge may grant an excuse from jury duty, including when a prospective juror:

Lacks “reasonably available means of public or private transportation to the court”
Must travel in excess of 1.5 hours from home to the court
Would bear extreme financial burden taking into consideration their income, expected length of jury service, availability of reimbursement for lost income, risk of compromising their ability to support themself and any dependants, and other unjust outcomes
Would unduly and unavoidably risk material injury to their property
Is “immediately needed for the protection of the public health and safety” to prevent “substantially reducing essential public services”
Is required for the personal care and attention of a dependant with no comparable economical substitute

Finally, and relevant to your question, a judge may grant a prospective juror excusal from service if they have “a physical or mental disability or impairment, not affecting that person’s competence to act as a juror, that would expose the potential juror to undue risk of mental or physical harm.”

Prospective jurors who believe that they medically or psychologically cannot sit as jurors should come to court on the date of their summons with a letter from their physician, psychologist or psychiatrist. Before jury selection, the judge will ask the assembled prospective jurors if they have a hardship which would preclude them from jury service. Those who believe they do will be allowed to fill out a hardship questionnaire. That is the time to inform the judge of your disability, supported by documentation verifying appropriate impairments and detailing their probable duration and impacts on ability to serve as a juror. If such an individual is aged 70 years or older, no documentation is required. They will then review your request, may ask for a letter or further explanation, and will grant or deny your request as appropriate.

A juror with a disability may alternatively be entitled to an accommodation so that the prospective juror can participate in the trial. California Civil Code Section 224 states, “The court shall appoint a service provider whose services are needed by a juror with a disability to facilitate communication or participation.” Available services include court-appointed sign language interpreters, oral interpreters, or deaf-blind interpreters. Likewise, a juror may ask for breaks, the ability to stand or even lie down. (Yes, one time I had a juror with a bad back who was allowed to lie down during the trial with her head propped up so she could see the evidence)

Some prospective jurors may seek disqualification due to a special vulnerability to emotional distress given the facts of the case at hand. In a case I tried several years ago, a prospective juror indicated they suffered from depression and felt that the case we were about to try, involving a woman claiming severe emotional distress, would be emotionally damaging to her. The judge, after hearing from the prospective juror, and observing her demeanor, dismissed her from further jury service. In another case, involving gynecological malpractice leading to the death of a baby, the judge excused a prospective juror who was pregnant and felt that it would be psychologically traumatizing for her to hear the facts in the case. Moreover, criminal trials for rape, assault, sexual abuse or death of a loved one may involve facts which are too intense for some people who may have suffered from similar crimes. If the facts of a particular case are the basis for a hardship, the judge may dismiss such a juror or send them back to the Jury Commissioner for assignment to a different type of case.

As a trial lawyer I encourage everyone to serve as a juror. Jurors are essential to our system of justice and, if you were a defendant or plaintiff, you would want a fair jury of your peers to hear your case.