This week’s question comes from John T. in Portola Valley, who asks:
Q: “I was using an electric scooter when the brakes failed and I ran into a car, breaking my wrist. I didn’t do anything wrong, but now I have a lot of medical bills and I will miss at least three weeks of work (I work with my hands). I reached out to the company and they said they would “look into it,” but I have not heard anything back from them. I don’t have a lot of money so this is going to wipe out the meager savings I have. What are my rights?”
A: John, I am sorry to hear of your crash. Unfortunately, you are part of a growing number of people being hurt by these new scooters, whether while driving over storm grates and uneven roads, colliding with cars that pull out in front of them or make unsafe lane changes, or by being rear-ended. E-scooters are causing a flood of injuries to the emergency rooms throughout the state.
Your case, in which the scooter’s brakes failed, presents an issue of product liability law. Like other jurisdictions, California law provides a means of seeking accountability for injuries caused by defective products by bringing suit against product designers, manufacturers, distributors, retailers and, in this case, providers of products for general use and consumption.
A claim for product liability may arise where there is a flaw in a product’s design, a manufacturing defect, a failure to properly inspect or maintain a product, or a failure to warn of dangerous and foreseeable risks, even when caused by foreseeable misuse. In order to succeed in such a claim, the product must be in the same or similar condition as when it left the manufacturer, distributor, or retailer. If the product has been modified in a manner that may have contributed to the injury, any party “upstream” from the point when it was modified may be insulated from liability.
Since products are often designed, manufactured, distributed, and retailed by different entities, and there is a risk that any one or more of them may not be properly insured or financially stable enough to pay for a valid claim, California follows the “chain of distribution” method of financial accountability. Depending on the type of defect (design vs. manufacturing/inspection), anyone “downstream” in the chain of distribution, from the designer to the retailer, or in this case rental company, may be held financially responsible for your injuries.
California law follows what is known as the “consumer expectations test” in determining whether a product is defective. If a product fails to operate safely when used in such a manner as a consumer could reasonably expect that it should, then the design may, depending on the facts, prove to be defective. If the product leaves a factory with a safety defect deviating from the intended design and manufacturing process (in your case, if the brake cable was fastened incorrectly), then the producer may be held liable for a manufacturing defect claim. The manufacturer may also be held liable for a failure to conduct a reasonable inspection to assure that the scooter was safe and fit for its intended use.
If, on the other hand, the product, as designed and manufactured, was safe at its point of initial sale, but Bird, Skip, Scoot, Lime or another rental company failed to properly inspect and maintain the product while it was in the field, then that company may be held responsible under a negligent maintenance theory of liability. These scooters are in heavy use/rotation and are often abused. The company’s inspection and maintenance program should be carefully examined to ascertain whether their methods and practices are adequate to identify and remedy dangerous defects.
One hurdle that you may face in making a successful claim, depending on the scooter company you rent through, is that you may have signed a waiver and/or assumption of risk clause when you clicked “accept” and accepted the terms and conditions of use. Some companies have put in a complete waiver in their terms and conditions which they will claim bars any legal action against them. Others have placed a $100 limit on their accountability. Some even go so far as to include a waiver of any claims against the manufacturers. These broad waivers have yet to be challenged at the appellate courts, so it is unclear if they will be upheld. Because of the unfairness associated with these waivers, I have proposed legislation, together with the premier consumer protection association in California, The Consumer Attorneys of California, to eliminate these anti-consumer waivers.
John, I suggest that you speak with a good, well respected, trial lawyer about this case and your facts. These companies generally don’t negotiate.
